Using Notional Separation in WESA – Part 2
Notional separation can be useful tool in determining the legal duty owed to a spouse who is not adequately provided for in their deceased spouses will. In part 1 of this blog series, we reviewed the principles behind using the tool of notional separation as a way to measure a spouse’s entitlement in an estate litigation case.
What is Notional Separation?
Notional Separation was recently considered by the British Columbia Supreme Court by the Honorable Mr. Justice N. Smith in the decision of Boyd v. Shears, 2018 BCSC 194. This case dealt with a wills variation action commenced by a spouse who had been in a 34 year marriage with the Deceased. The Court made the following comments:
[12] In considering whether a will has made adequate provision for a spouse, the court considers what the spouse would have been entitled to in a notional separation immediately prior to the testator’s death. That notional separation defines the minimum acceptable level of what is adequate, just and equitable: Ciarniello v. James, 2016 BCSC 1699 (CanLII) at paras. 70 and 71.
[13] The property that forms this estate was acquired by Ms. Boyd about six years before her marriage to the plaintiff, but they lived together there for more than 30 years until her death. In a notional separation, the Family Law Act, S.B.C. 2011, c. 25 would give the plaintiff a claim to half of the amount by which the property’s value increased during their relationship. That would likely be more than what he has agreed to accept in the proposed settlement.
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If you are involved in estate litigation or wish to vary a will, contact the Kushner Law Group today to schedule a consultation.