Spouse Deserves More than a ‘Qualified Life Interest’ in the Estate

Estate Planners, Morality, & BC Will Variation Case Law

Estate planners can often be creative in their planning solutions depending on the instructions they receive from a will-maker (known as a testator). One option open to will-makers is to provide a life estate in a piece property which allows the beneficiary to reside in the property for the duration of their life but upon their death life estate beneficiary loses their interest in the property. In the case of Anderson v. Coles, 2016 BCSC 13, the Court summarized the provision for the Plaintiff as follows:

Qualifications required by the will

[5] In general terms, the Will provides for Mrs. Anderson to enjoy the use and occupation of the 7th Avenue house for her life on certain conditions (including remaining unmarried and not living in a marriage-like relationship), and to receive the income of the residue of the estate for life on similar conditions. In the event that she advises in writing that she no longer wishes the house held for her, or she no longer resides at the house, the trustee is directed to sell the property and either add the proceeds to the residue producing income to Mrs. Anderson for life while unmarried, or purchase a more suitable property of equal or lesser value. The Will provides that upon Mrs. Anderson’s death or remarriage or upon her entering a marriage-like relationship, the estate will be divided into five equal shares, one share for each living child and the share of a deceased child being divided equally between his or her living children.

Judge looks to moral standards for variation

In this case, the Plaintiff spouse sued to vary the will and the Court agreed that the qualified life interest was not sufficient:

[58] In my view, it is contrary to contemporary moral standards that a long-term, caring and dedicated spouse with a notional legal claim to equal division of family assets should be limited to a qualified life interest, with the entire estate going on her death to the testator’s independent adult children. In all the circumstances, I am of the opinion that the Will does not make adequate provision for the plaintiff, and should be varied.

[59] In my view, the specific relief sought by the plaintiff is more than is required to provide adequately, justly and equitably for her, and would unduly interfere with Mr. Anderson’s testamentary autonomy, and the defendants’ moral claims. Exercising the discretion granted by the Act, I would vary the Will to provide the plaintiff with an undivided 50% interest in the property located at […] Kamloops, B.C., and, additionally, the sum of $90,000. The remainder of the estate shall go to Mr. Anderson’s children per stirpes as he provided. The provisions of the Will regarding taxes, insurances and other expenses are abrogated and these expenses shall be borne in proportion to ownership interest in the property.

Our Related BC Wills Variation Posts

• Challenging a Will in BC: the Moral Obligations Threshold Test
• Can Napkin Notes Alter a Will in BC?
• Estate Litigation: Making Sense of “Morality”

Contact our Wills Variation Lawyers in Vancouver B.C.

From small claims to the supreme court, the Kushner Law Group in Vancouver B.C. has extensive experience representing clients in wills variation and civil litigation.

If you are a spouse or adult child of a deceased relative and believe that you have been unfairly treated by the terms of the will or left out completely, please contact the Kushner Law Group today at 604-629-0432 to schedule a consultation.