Using Notional Separation in Wills Variation Actions
What is Notional Separation in Wills Estates and Succession Act (WESA)?
The Wills Estates and Succession Act provides spouses and children with the ability to challenge the will of a deceased spouse or parent if they believe that they have not been adequately provided for. In the case of the spouses, one tool that the Courts have used in determining what an appropriate provision would be is making an assessment based on if the parties had separated during the lifetime of the deceased. This is called using a “notional separation”. This concept was succinctly explained by the Honorable Mr. Justice in the decision of Ciarniello v. James, 2016 BCSC 1699:
 I think the plaintiff is correct that the approach in British Columbia following Tataryn has been to determine the legal obligations to a spouse by considering the spouse’s entitlement in a notional separation immediately prior to the testator’s death. See for example: Wong v. Soo, 2015 BCSC 1741 (CanLII) at paras. 70, 73-75, 114‑115; Saugestad v. Saugestad, 2006 BCSC 1839 (CanLII) (varied but not on this point, 2008 BCCA 38 (CanLII)); Glanville v. Glanville (1998), 1998 CanLII 6031 (BC CA), 58 B.C.L.R. (3d) 240, at paras. 14 and 50; Erlichman v. Erlichman Estate, 2002 BCCA 160 (CanLII) at para. 49; Bridger v. Bridger Estate, 2006 BCCA 230 (CanLII) at para. 19.
 In Saugestad, Justice Russell referred to these authorities for the proposition that this notional separation defines the minimum acceptable level of what is adequate, just and equitable. She added at para. 73 that “consistent with the family law decisions that establish the legal obligations of the testator, the length of the relationship and the contribution of the claimant spouse are relevant factors to a determination of what share of the estate a spouse will be entitled to.”
 As Mackenzie J.A. said in Bridger v. Bridger Estate at para. 20:
 Tataryn followed Walker v. McDermott, 1930 CanLII 1 (SCC),  S.C.R. 94, and confirmed the rejection of a purely need-maintenance approach to entitlement under the Act. Moral claims against the estate by spouses and children of the testator are entitled to recognition. McLachlin J. (at para. 28) described moral claims as “found in society’s reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards.” Here the court is required to balance the competing moral claims on the estate of Mrs. Bridger and the daughters after the notional legal claim of Mrs. Bridger to a half share of family assets has been recognized. The will recognizes the moral claims of the appellant daughters but ignores any moral claim of Mrs. Bridger. Tataryn recognizes that there is no clear legal standard to judge moral claims and the test is more nebulous where the surviving spouse is not strictly speaking a dependent spouse and the children are all financially independent adults. While, as McLachlin J. observes in Tataryn, there may be a number of options for dividing assets by a testator which are adequate, just and equitable, I do not think they include a disposition that entirely prefers the moral claims of adult independent children to those of a loyal spouse who provided care for the testator over years of debilitating decline. I am satisfied that the trial judge was right to recognize unfulfilled legal and moral obligations of the testator to Mrs. Bridger, as those terms are understood in a wills variation context. The legal obligation can be quantified as above. The question then becomes the measure of the outstanding moral obligation.
 The legal entitlement of the spouse immediately before the death of the testator is the relevant time, that is, the time of the notional separation, to determine the extent of the testator’s legal duty.
 As Dr. Ciarniello died on April 28, 2013, the Family Law Act, S.B.C. 2011, c. 25, should govern the analysis. Given the provision of the Divorce Act and the Family Law Act, I think that the plaintiff at a time just prior to the death of the testator would likely be entitled to an equal division of family property. While I doubt that a family law analysis would have resulted in an order for spousal support, given the condition of the testator at that time, the deceased’s legal obligation would be to provide 50% of the family property.
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