Cohabitation Agreements in Wills Variation Claims
BC Supreme Court on Cohabitation Agreements
BC Wills Variation Claims
In British Columbia, under both the Wills Estates and Succession Act (“WESA”) and the Family Law Act, common law spouses are afforded the same protections as married spouses and have the standing to bring law suits to vary wills if they believe that they have not been treated fairly by their deceased partner.
In the decision of Brown v. Terins, 2016 BCSC 42, the Court was required to consider the claim of a common-law spouse who had been in a 14 year relationship with the Deceased. An interesting aspect of this decision is that it was agreed by all parties that although both of the spouses had executed a cohabitation agreement, the cohabitation agreement did not preclude either spouse from bringing a wills variation claim. Mr. Justice Thompson stated the following:
 It is common ground that Ms. Brown’s wills variation claim is not barred by the cohabitation agreement. The agreement that each would execute a will providing that their individual estates would go to their own issue — and the fact that each of the spouses executed a will consistent with this agreement — does not end the analysis. Having regard to the public interest and the scope and policy of the wills variation statute, the obligations of Mr. Terins must be examined in the complete factual context existing at the date of his death. A cohabitation agreement ought to receive consideration, but even an agreement that is fair, solemn and well-considered is unlikely to be a complete answer to a wills variation claim.
See Boulanger v. Singh (1984), 1984 CanLII 403 (BC CA), 59 B.C.L.R. 383 at 389 (C.A.); Wagner v. Wagner Estate (1991), 1991 CanLII 5739 (BC CA), 62 B.C.L.R. (2d) 1 at paras. 31-32 (C.A.); Steernberg v. Steernberg, 2006 BCSC 1672 (CanLII) at paras. 70-87; Morgan v. Pengelly Estate, 2011 BCSC 1114 (CanLII) at paras. 145-176.
 In short, it is necessary to examine Mr. Terins’ legal responsibilities and his moral obligations in the full context of the facts as they existed or could have been reasonably foreseen by Mr. Terins at the date of his death in order to determine whether Mr. Terins made adequate provision for Ms. Brown.
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