Estate Litigation and Second Marriages
Under section 60 of the Wills, Estates and Succession Act , the courts have established discretionary guidelines for determining if a will does or does not make adequate provision for the proper maintenance and support of the deceased’s spouse or children.
To test whether there is “adequate provision for  proper maintenance and support,” the court will review if the testator was “acting in accordance with society’s reasonable expectations of what a judicious parent would do in the circumstance by reference to contemporary community standards”: Schipper v. Schipper Estate, 2010 BCSC 1067.
While this seems fairly straightforward to the seasoned state litigation lawyer, what happens in cases of second marriages?
Legal Precedent in Second Marriages Wills Variation
In the case, Unger v. Unger, 2017 BCSC 1746, the deceased, Jacob Unger, had died at the age of 82, providing within his will, that after $20,000 bequests to each of his two daughters, the remainder of his estate was to be divided equally among his four adult children–two of which were his second wife’s children from her first marriage.
Though Unger had been married twice in his lifetime, his wife at the time of his passing was left nothing within the will. Jacob made note within the will that during his lifetime, he had transferred 50% of their matrimonial home into his second wife’s name. However, his wife filed for wills variation claiming that Jacob had not made equitable provisions for her. Jacob’s biological children opposed the variation.
It is also important to note that before his passing, the couple had separated, though reconciled to some extent before his death.
So what did the courts decide?
Because the home was not held any longer by Mr. and Mrs. Unger at the time of his death, the home was sold and Mrs. Unger received 50% of the value as per the transfer in the title made while Jacob was living. The remainder of his assets was held in a joint account he shared with one of his daughters.
Though Mrs. Unger made no financial contribution to the marital home, the court concluded that the 50% share she received was presumed to be a gift under the common law. With that being said, Mrs. Unger did, in fact, have a strong claim for the division of property.
This is obviously a unique case, as many more elements of the Unger’s relationship came to fruition including abuse. But what test can the courts utilize when determining the rights of a spouse in a second marriage in wills variation claims?
Second Spouse’s Legal Claim in Wills Variation
When determining if a spouse from a second marriage has a right to vary a will in British Columbia, the courts will review the following elements of the marriage:
- The length of the marriage;
- When/how the deceased’s assets were acquired;
- The contributions made by the second spouse to the estate;
- How family assets would be divided upon marriage breakdown;
- Obligations to the children from the first marriage;
- Financial circumstances of the spouse;
- The size of the estate; and
- The value of assets passing to the spouse outside of the will via right of survivorship or by transfer of assets during the will-maker’s lifetime
Obviously, there are issues that arise in wills variation claims involving second marriages and adult children. However, the estate litigation lawyers of Klein Lawyers can help.
Estate Litigation and Second Marriages: Klein Lawyers
When you have been remarried, there are a lot of factors that come into play when it comes to proper estate planning. Unfortunately, be it intentional or not, sometimes a second marriage leads to the latest spouse being left out of the will.
As the spouse of the deceased, you likely have a claim to a portion of the estate, even if your spouse left you a gift before death. But when family tensions are high with the biological children, you will need a lawyer who can guide you through the process.
Contact Klein Lawyers at (604) 874-7171 today for a free, confidential case evaluation. Our wills variation lawyers serve clients throughout British Columbia from offices in Vancouver, Abbotsford, Burnaby, Coquitlam, Langley, and Surrey.