BC Court of Appeal Considers Spouses Who Keep Finances Separate
Wills Variation Litigation Court of Appeals Case
Morality & Law: BC Court of Appeal Considers Spouses Who Keep Finances Separate
The British Columbia Court of Appeal recently released a decision in the matter of Kish v. Sobchak Estate, 2016 BCCA 65. In this decision, the Court of Appeal considered the decision of a trial judge on a summary trial application in a case where the Deceased and his spouse met later in life and kept their financial affairs separate and even maintained separate homes.
On the basis of need, the trial judge who heard the matter, varied the will the Deceased to provide the spouse with $100,000.00. The will of the Deceased has originally provided his entire estate with a value of approximately $186,000 to his only daughter.
The daughter appealed the decision and the Court of Appeal reduced the award to the spouse to $30,000.00. The Court made the following comments in the judgement:
 Like the trial judge, this court can do no better than exercise its discretion based on all of the relevant factors in the particular case before it. In my opinion, the factors that weigh most heavily are the relative sizes of the two estates on the one hand, and on the other, the legal support obligation to which Mr. Sobchak would have been subject if the parties had separated during his lifetime. In all the circumstances, I cannot say the trial judge erred in finding that Mr. Sobchak failed to make “adequate provision” for Ms. Kish, even though she has the equity in her home to meet her basic needs.
 At the same time, I conclude that through the lens of “modern values and expectations”, the parties’ wishes remain an important consideration. The parties’ particular circumstances and their relationship weigh strongly, in my opinion, in favour of respecting testator autonomy. I would, with respect, give more weight to that principle than did the trial judge and would therefore reduce the a ward to Ms. Kish to $30,000.
This decision highlights the importance of balancing both the principles of testamentary autonomy and the legal and moral obligations testators have.
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