Episode 34 - The Legal Implications of Spousal Status in Estate Matters with Aaron Pearl
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In this week's episode, Nicole and Greg chat with Aaron Pearl, a seasoned estate litigator from Clark Wilson LLP, to unravel the complexities of defining a "spouse" under British Columbia law. The discussion delves into the nuances of spousal status in estate litigation, particularly in cases of intestacy and wills variation claims. Aaron explains the criteria for a marriage-like relationship, emphasizing the importance of understanding each unique case. Real-life examples illustrate the challenges of proving undue influence and the balance between individual autonomy and protection. The episode underscores the need for clear communication and professional legal advice in estate planning.
Transcript:
Nicole 00:00:02 Hello and welcome to Your Estate Matters with your hosts, my colleague Greg Brennand and myself, Nicole Garton of Heritage Trust.
Greg 00:00:09 Your Estate Matters is a podcast dedicated to everything estates, including building and preserving your legacy.
Nicole 00:00:16 If it's estate related, we'll be talking about it. We're having the conversations today that will help Canadians protect their families, their assets and their legacies tomorrow.
Greg 00:00:33 With us today on Your Estate Matters is Aaron Pearl, a partner with Clark Wilson LLP. Aaron is an experienced and effective estate litigator who emphatically guides clients through complex legal files towards a successful outcome. Aaron, thanks for being here with us today. Tell us about yourself and your journey to your current role as a partner with Clark Wilson. Yeah.
Aaron 00:00:58 First of all, thank you so much for having me. It's my first time being on a podcast. I listen to a lot of podcasts, but excited to actually be doing one myself. I started off my career in Toronto. I'm born and raised in Toronto and actually articled at the now dissolved firm Heenan Blaikie that you may have heard of from way back, and I was articled there while it dissolved, so that was somewhat interesting.
Aaron 00:01:21 I went to a firm that did civil and estate litigation for a few years there in Toronto, and then I moved here, and when I moved here, I really wanted to focus on estate litigation. And I took a position with Clerk Wilson, well established firm with a big estate litigation and just generally estates team. And I've been working there for coming up on seven years now. And I'm a partner at Clark Wilson doing justice state litigation.
Nicole 00:01:49 So tell me about your current practice and how you approach estate litigation.
Aaron 00:01:54 Yeah. So as I said, I do just that. So I'm able to focus every file in a state litigation is quite unique. There's of course patterns you'll see. But each situation has its own intricacies. I mean, we feel like when we see Wills variation claims that the same thing is coming up over and over again. Or, you know, with spousal issues like we're going to talk about today, you see the same thing over and over again. But really, every client needs a very particular approach.
Aaron 00:02:24 And that's what I and my team at Clark Wilson try to focus on. Sometimes a heavy hand is needed in litigation. Sometimes a client needs to be spoken to directly about the realities of their case and the facts they've presented. I like to work with each client in their specific ways to determine realistic objectives, and then to try to achieve those objectives. And sometimes that means going through the litigation process a little bit or a lot all the way. And sometimes that means other alternatives. Negotiation, mediation, etc..
Greg 00:03:02 Yes, because I think just the word litigation they always think involves the court is the final factor. And mediation could resolve a lot of those issues.
Aaron 00:03:10 Mediation is a wonderful tool. It can be a double-edged sword because there's a lot of pressure in mediation, but it is the best way for everyone to sit down and put their full focus on this one case for the day. That goes for the lawyers, too. You know, lawyers typically have lots of files, but when you go to mediation, you're just focusing on negotiating that one thing for that day.
Aaron 00:03:36 And there's a, as I've heard some senior lawyers say, and I feel this as well, there's a magic to mediation. There's a bit of a pressure cooker there. And so a lot of times you do get a settlement out of mediation for sure.
Nicole 00:03:50 What percentage would you say if cases actually end up going to trial versus get negotiated or settled in.
Aaron 00:03:58 Going all the way to trial. From what I've seen, the percentage is really low, I would call it. I haven't looked at statistics, but in my view it's 5% kind of a 1 in 20 kind of shot. But having said that, there are a lot of cases that might go to the eve of trial. And so you've still gone through all the preparation and expense and etc. and then it'll settle, you know, just a couple of days before trial. Sometimes with those, you feel like you've gone to trial, but you really haven't. But it's low. That will actually go all the way to trial.
Greg 00:04:31 Now, as we're getting to our topic today about the spouse who in B.C. is considered to be a spouse.
Aaron 00:04:36 We can start with the obvious one, which is if you're married, legally married, you're certainly a spouse. But I think we want to focus our attention today on the more ambiguous and the more creative one, which is, as we colloquially call them, common law spouses. To determine that, you, of course have to start with the statute. There's the Wills Estates Succession Act and it says two persons or spouses of each other for the purposes of that act, if they had lived with each other in a marriage like relationship for at least two years. So we have this term marriage like relationship. That's what we have to look at. And we can break down what in the world that means, of course. But a key there is two years, which should be distinguished from somewhere like Ontario, where it's actually three years and more difficult to prove that you are a common law spouse marriage like relationship because you have that extra year. It's a it's a big gap there. There's no language there about gender, of course, as we could all expect.
Aaron 00:05:37 So certainly two people of the same gender can be in a marriage like relationship. And there's also nothing in the statute that precludes a marriage like relationship with more than one person. And in fact, in the intestacy section of that act, there is specific contemplation of someone having potentially more than more than one spouse when they pass away. So the big question, of course, is what is that marriage like relationship? And you have the subjective intention of the parties to live in that relationship. And you also have the objective evidence of their lifestyle, their interactions. There's the subjective side and the objective side.
Nicole 00:06:19 Can you tell us what some of the indicia are of a spousal relationship? Because I understand there have been some cases where people have been found to be spouses and they never actually live together, or even at some periods of time were legally married to other people. What's the checklist that a court looks at?
Aaron 00:06:37 Yeah. So an Ontario case from I think it's back in 1980. It's called Molodowich and that sets out criteria that we still look at.
Aaron 00:06:47 It's not an exhaustive list. It's the case law specifically says it's not a checklist or anything. and so of course, on that list, one of the things is shelter. Do they live together? But that's not required. And the court takes a very. There's cases that use words like flexible, holistic. That's the approach that the court is taking to whether someone's in a marriage like relationship. So just to run through those factors and some of them are things you would expect shelter. Do they live together? That's an obvious one. And that's the first thing we probably think of because we think of that word cohabitation. Next you have sexual and personal behavior. Sexual is in the title there. But that's really not the focus. It's much more than that. It's involves the behavior towards one another. Their feelings. Do they eat together? Do they give each other gifts? What's their communication like? Of course, the factor of their intimacy being there makes for some interesting and uncomfortable discoveries for examination, for discoveries which I've been in, where there's I've been on both sides asking the questions and defending the questions for a client about details of their sex life, which is always something that I talk to clients about when they're getting into this type of lawsuit.
Aaron 00:08:07 I say, look, you are going to be asked about your sex life, so be ready for that. And I'm not going to be able to object to the question. It is blatantly relevant. So please be prepared. Other factors are services. What kind of domestic tasks they took on their social life. Did they participate in community activities? How did the community see them? Their societal approach? How did they go out to the community and present themselves? And then of course, there's a big one which is economic support and financial arrangements. Did they have a joint bank account? How did they deal with their finances? And the last one. Another very big one. But it's not often there is children. Did they have children? Simple. Yeah. And what was their attitude towards children? So maybe they didn't have a child together, but perhaps one of them had a child that they were then raising together, that that would be a factor there as well.
Greg 00:09:04 For the financial aspect. Such thing as tax filings.
Greg 00:09:08 Is that important how they're reporting their affairs?
Aaron 00:09:11 I'm glad you asked that question, because that seems to always come up, particularly in cases where I'm on the side, where we're trying to argue that someone is not a spouse, and I'll have the client saying, well, look, they reported on their taxes, that they're single. It's not determinative for sure. I think that there's this perspective out there that the way you report on your taxes, whether you're single or you're in a married relationship, is all of a sudden the letter of the law. It's not that way at all. But certainly in the cases the courts will look at that and consider it in this holistic approach. But there shouldn't be an overemphasis on it, and I feel like there is, because it's just something that's black and white. Everything else is a little more ambiguous, you know?
Greg 00:10:00 Yes. I was always kind of shocked that where we would consider people not to be spouses. The person just had to fill out a statutory declaration for CPP to get spousal benefits.
Greg 00:10:12 Yeah. With relatively little proof whatsoever.
Aaron 00:10:15 Yeah. And that's of course not determinative because you don't need much to fill that out.
Greg 00:10:20 No. Absolutely.
Nicole 00:10:22 And the facts can be colorful. I think the case is O'Conner, where the purported reason why they never cohabited was she was a hoarder. Yes. I guess the other spouse couldn't physically move in, but then he was also legally married to someone else for part of the relationship. And the court still found them to be spouses. So it's the cases can be unexpected.
Aaron 00:10:46 That can go either way because I've seen cases reported cases where I think it's glass estate state where they, They were living together. But then one of them moved out because there was cockroaches and other issues in the property. Perhaps a mess which goes along with the cockroaches. And the court looked at the fact that they couldn't find a way to see eye to eye on that as a reason to find that they were not spouses. Right? If your spouse, you know that judge, thought, well, if your spouses, then you should have found a way to compromise here, get rid of the cockroaches, move to somewhere clean, etc. so it can go either way.
Greg 00:11:24 Why is the issue of whether or not somebody is a spouse relevant in the estate matters in B.C.?
Aaron 00:11:31 Great question. Why? Why are we even talking about this? So when someone passes away, there's several ways that whether they have a spouse is very important to know. The first clear one is if they pass away without a will on an intestacy, a spouse is going to have certain rights to the assets and the estate. And so determining someone's a spouse is very key there. And as I think I mentioned earlier, the intestacy rules do specifically contemplate if someone has more than one spouse, then they can. The two or however many it is, can figure out how to divide the property, or the court is going to have to rule on it.
Nicole 00:12:13 So, Aaron, some of our listeners might not know what intestacy means.
Aaron 00:12:16 Yes, of course, an intestacy is when you pass away without a will. So intestacy is no will. It's a legal term that is thrown around quite a bit.
Nicole 00:12:26 Yeah.
Nicole 00:12:26 And what happens? Who determines then. Who receives the estate.
Aaron 00:12:30 On an intestacy? It's laid out very clearly in the Wills, Estates and Succession Act. There's a formula and the spouses certainly at the top of that formula, which is again why it's so important to know is someone a spouse or aren't they. And that's where you get into lawsuits with the children because the next in line. There is children. And so cases often come down to children from a separate relationship or a prior relationship, arguing about whether later in life, relationship constituted a marriage like one. Yeah.
Nicole 00:13:06 And can you talk about standing? Who has standing to say wills unfair.
Aaron 00:13:11 In wills variation, you mean? Well, that was going to be my next point about why spousal status is so important is the only individuals that can bring a Wills variation claim here in BC are spouses or children. I say here in B.C. because in Ontario, where there's no wills variation, but there's dependence relief, it's actually grandchildren are also able to bring that.
Aaron 00:13:35 So here it's just spouses and children. So of course, the issue of is someone a spouse is crucial to. Can they bring a Wills variation claim that would be separate from intestacy. That would be a case where there is a will and you want to vary the will. It doesn't leave enough to the spouse or to as alleged. It doesn't leave enough. The spouse would want to bring such a claim. Yeah, some other areas where it would be important are in the Wills Estates Succession Act. If someone sees this to be a spouse, then if they have a gift in the will, it would be revoked. Or if they're appointed executor in the will, it would be revoked. So you also have to look at is someone still a spouse.
Greg 00:14:17 Right. So when you get into that, of course one way to cease being a spouse is passing away. Certainly divorce, but a separating act, like if they've gone out the door and slammed it and I'm moving out.
Aaron 00:14:28 Yeah. And that is a more complicated question, is when do people cease to be a spouse? If it's a marriage like relationship, it's different than a legal relationship.
Aaron 00:14:39 If it's a marriage like relationship we look at is the relationship the word used is is it terminated? And that is again a bit of a the court takes a bit of a holistic approach to whether it's terminated, and there's a lot of argument and case law about what that could mean if someone just slams the door. That might not mean a settled intention to end the relationship, necessarily.
Nicole 00:15:04 So say the relationship is terminated, but they haven't resolved their family law case. What happens if one of the spouses dies before that occurs?
Aaron 00:15:15 The case can still certainly continue if they've started a family law case and you're on that track and there's been a termination or separation, then that case would carry on.
Greg 00:15:25 Can you give us an example of how some of these issues have played out in B.C. estate litigation?
Aaron 00:15:30 Yeah, I can. I actually I wanted to mention so I was involved. It was probably ten years ago now in a case in Ontario. I know you said B.C., but in Ontario we went to trial about precisely one of these cases where man was legally married to one person, but he was in a relationship as well with our client.
Aaron 00:15:53 There was a child that they were both. It wasn't his child, but they were both contributing towards certainly one of our witnesses. I was a first year and I was actually doing the cross, the examination of our witness, who was a tutor to the child. So we were asking questions about, you know, how is the deceased involved in your tutoring of this child? There was a house that was purchased for this person. There was certainly a sexual relationship, which was discussed extensively in discovery. And, the court found that this was not a spousal relationship. Now, part of the issue there was the three year, as I was saying, in Ontario, you need three years, whereas here you need two. So it is, I would say, much easier in B.C. to show a marriage like relationship when you only need two years instead of three, but that that one didn't get over the hump to make it a spousal relationship. And in B.C., I've dealt with a case. This one didn't go all the way to trial, but I've dealt with an interesting one where a man passes away and we represent the spouse who's going to apply for probate.
Aaron 00:17:03 Go about the regular steps that you do. And out of the blue, out of the woodwork, we have a letter from a lawyer that there's this other person claiming to be a spouse who lives down in the United States, and lo and behold, they actually have a child together. So that was certainly an interesting one. Our client said they had no idea that this other person existed, that there was another relationship. As I said, it did not end up going all the way to trial. It was one of those 95% that settled, and part of the reason for the settlement was we seeing that there was a child. That makes it difficult to argue that there's not a spousal relationship. If there's a child, that's a pretty big factor.
Nicole 00:17:47 Greg, you've worked on cases where there were secret families. Isn't that true?
Greg 00:17:51 Yeah. So certainly, you know, we always call them like salesman cases or something like that where somebody traveled and or had children in other jurisdictions when they lived there earlier.
Greg 00:18:03 But certainly two spouses that I've seen, a few of those where somebody was married, left their spouse was common law with somebody else. And then an unfortunate incident happened. And the question was, you know, at that time, who was the spouse?
Aaron 00:18:20 Exactly.
Greg 00:18:21 Because they were right around the two year mark or just short of it?
Aaron 00:18:24 Absolutely.
Greg 00:18:25 Yeah, it's quite complicated situation.
Nicole 00:18:29 There have been some high profile B.C. cases recently where a spouse, it turns out there is a second spouse, and it's been quite contested about who has the ability to be executor, how the assets are going to be distributed. It's actually surprisingly not uncommon.
Aaron 00:18:45 It seems to be more and more common. I have a few of those cases on the go where there is this argument, and the reason for that is there's a lot at stake in an intestacy. Of course, you get the lion's share if you're a spouse, but also if you're able to bring a Wills variation claim and you can claim that you're the spouse.
Aaron 00:19:04 Even in smaller estates in B.C., if there's a property you're typically looking at in a state that is maybe minimum $1 million or close to it, that's a lot of money, and there's a lot at stake in a lot of these cases. If you are able to prove that you're a spouse. So these are common.
Greg 00:19:21 And it's really a since our law changed here in 2014, there's no longer life interests for the spouse automatically in homes. And that's where the big fight really starts if there's uncommon children.
Aaron 00:19:35 Right. Well, the Wills Estates Succession Act does have a section allowing a spouse to have an entitlement to a spousal home, but it's not an entitlement where they automatically get it. They'll have to pay. They'll have to pay for it out of their inheritance, essentially what they get out of the estate. So that's another issue. If you have a spouse and they want to hold on to the property, you're going to have to prove that you're a spouse in order to, affect those sections of the.
Greg 00:20:03 And with such expensive homes, it's sometimes hard to accomplish making that election for the home.
Aaron 00:20:09 That's right.
Greg 00:20:10 Yeah.
Nicole 00:20:11 So we have a piece of legislation NBC which is older that surprisingly not used that often, which is the Land Spouse Protection Act. So if a savvy lawyer prospective spouse comes in, if the other party is the sole owner, you can file this effectively. Lean on title and it creates a de facto life interest if that sole owner does pass away. Do you see that often?
Aaron 00:20:37 I haven't seen that used very much. I'm aware of it and it comes up, but I haven't seen it used a great deal. And the sections that I was just mentioning, I've in my seven years here have only seen it used actually once where the entitlement under USA is claimed. So what's much more common is just wills variation because it's so there's so much discretion to the court in what the spouse can get. You can argue in a Wills variation case that you should just get the house. And so it's much more open what you could potentially get in an award.
Nicole 00:21:15 Let's talk about predatory marriages. That's seems to be increasingly common with the aging population, where there's open questions about whether the marriage itself was valid. Do you see that very often?
Aaron 00:21:31 I do see that coming up. And it is, first of all, very difficult to show that there was something like undue influence to enter a marriage. It's also very difficult to show that there was incapacity to marry. It is notoriously understood in the Estates Bar that the level of capacity needed to enter a marriage is very low, one of the lowest, if not the lowest of all the estate planning. If you could consider marriage estate planning, it kind of is because it enters you into arrangements in these statutes we're talking about, but you don't need a great deal of capacity. And so, yeah, you could have there's cases where you have caregivers in these alleged marriages, and it is difficult because of that level of capacity. The bar is low, unlike something like, you know, a will or powers of attorney or transfers of assets gifts.
Aaron 00:22:30 The bar is considerably higher for those. But for marriage, these predatory marriages can be very damaging to families.
Nicole 00:22:39 So what might be the remedy? Say mum passes away and dad's caregiver secretly marries him, which is a real case that we had in our office. Like, what are some of the remedies? Would you attempt to do an annulment, or what might be some ways to attack? What the family might feel is was an invalid marriage?
Aaron 00:23:00 Well, you're. What I just mentioned is really what you're going to have to do, because clearly, this, this individual who entered the marriage is not going to be consenting to any steps to terminate the marriage. Right? So you are going to have to use the tools of showing that it was done by undue influence. So another word for that is this kind of coercion to enter this marriage. or showing that they didn't have capacity to marry, which I just spoke about how difficult that is, you know, on the undue influence point when someone is dependent on someone else, if you can try to demonstrate that they said or that they showed that they implied that, you know, they would pull back their support unless you married.
Aaron 00:23:50 Well, that would be proof of undue influence. But that's very hard to prove because where are you going to get that evidence? It's probably not going to come from that caretaker themselves. They're not going to want to admit to saying something like that. That's what makes undue influence cases so challenging.
Nicole 00:24:05 There was quite a well known case in B.C., I think it was even featured in the Vancouver Sun. And I think what we got from that was adults have autonomy and rights of self-determination, and they're allowed to make bad decisions. They're allowed to blow their money, they're allowed to live at risk. And I think that creates a lot of difficulty sometimes for adult children watching this. And I think that case was mom had passed away and dad met a young woman who was in a reggae band, and he purported to give all of his funds to this reggae band. And then the children were worried that he was going to try to mortgage his house to give them more money. They managed to register some sort of lien using a power of attorney.
Nicole 00:24:49 He in fact did try to mortgage the house, found the lean litigation and sued, and unfortunately the children lost. He was able to then proceed to mortgage his home and basically give the entirety of his assets to what some people might say was a predatory marriage. But the court said he had the right to make bad choices. I mean, I think, do you see cases where there's a tension between autonomy and rights to make choices of, of an adult and what may look like an undue influence or, or a course of relationship?
Aaron 00:25:27 I definitely see cases like that. And it's very difficult for children in that position to be watching one of their parents do these things that are seen as detrimental. But the law in BC affords a great deal of autonomy to people. Interestingly, while they're still alive. Yet, we also have this wills variation. The ability to bring a Wills variation claim here, which isn't available in most other provinces in Canada, which arguably takes away some autonomy from their estate planning.
Greg 00:26:05 Right.
Greg 00:26:05 So that's actually our next question. So taking in spousal considerations and planning. How about a defense of estate planning if you're looking at that situation.
Aaron 00:26:15 Yeah. And I'm as I said I do litigation. I don't do planning. But I do see these things come up all the time and I'm well aware of them. And so some popular strategies, of course, are entering into an agreement. You know, we hear about marriage agreements all the time. So entering into an agreement like that, where you set out that one spouse will not claim against another spouse's estate after death. Now, as you probably know. Well, as you know, maybe not your listeners. Those agreements will not prohibit or preclude a Wills variation claim, and the court can still order a variation, even if you have an agreement like that. But it will be a factor, right? I mean, that agreement is telling the world this is how we wanted to arrange our affairs, and that is going to be a strong factor when the court looks at how and whether they should vary a will at all.
Aaron 00:27:13 So an agreement, even though it is not necessarily determinative of Wills variation claim and can't prevent a Wills variation claim, it's powerful for sure. The other thing I see is memos or statements that go along with wills. Sometimes they're even in the will themselves. That explains the deceased's decision making in their estate, explains why they didn't want to give the spouse more, or why they only gave the spouse what they did. Sometimes it'll say something like, well, I gave the spouse X amount of money while we were living like you talked about. I gave it all to her reggae band. And so I'm not you know, the rest of this is for my children. Again, not determinative doesn't prevent a Wills variation claim, but that's something that if it can be proven that it is true, that it contains comments that are accurate, can be a very powerful tool in the court because it's coming from the deceased's mouth, in a way. And lastly, a very common strategy is this should be discussed thoroughly with an estate lawyer is transferring assets outside of your estate that gets them those assets outside of the reach of a Wills variation claim.
Aaron 00:28:30 And so some kind of basic ways to do that are putting assets into joint ownership so that a survivor will get it. That can be done with bank accounts. It can be done with property. You can also make beneficiary designations on certain types of accounts or life insurance. And lastly, there's putting assets in trust, which is something we certainly see a great deal of to avoid these types of wills, variation claims, and to try to plan around either a spouse or someone who you are expecting is going to claim to be a spouse.
Nicole 00:29:03 Sometimes we see adult kids driving mom or dad to the lawyer's office with the absence of the other spouse. Knowing, setting up, planning those joint chores or those trusts can can that be undone using what's called fraudulent conveyance? Or what are some pushbacks to that kind of planning?
Aaron 00:29:23 So there is case law that states that fraudulent conveyance, moving assets out of your estate for the purpose of avoiding a Wills variation claim is not going to be considered a fraudulent conveyance that is seen as legitimate estate planning.
Aaron 00:29:42 The way the law stands today, and that's been pretty settled through a few cases at this point. And so the typical ways to attack that kind of estate planning are, you know, fraudulent conveyance. If there's maybe another claim that you see that they're trying to avoid and transferring those assets, maybe there's some debt there, some debt claim that they're trying to avoid. But the the common ones I'm seeing are incapacity to make those transfers. You mentioned driving the parent to the lawyer's office to do it. That fact comes up all the time. Again, it's it's it's kind of like the, the one you mentioned with what the tax filings say about whether they're a spouse or not. It seems to come up every time. But it it's really not determinative. I mean, elderly people need rights. It's it's a common thing. but, you know, that's going to play into the potential undue influence case to say, well, you drove them. Were you there at the appointment? Did you bring them to the appointment? Were they the type of person that was just saying things that you told them to say? So undue influence and incapacity to try to invalidate those transfers or those trusts or what beneficiary designations, whatever have you.
Aaron 00:30:55 Those are common. We see those quite frequently.
Nicole 00:30:58 Do you have an opinion on mutual will agreements?
Greg 00:31:01 I think you'll have to explain what those are.
Aaron 00:31:03 Yeah, sure. Explain them to your audience. But I don't see them coming up very much. I see them coming up in arguments that there was an agreement to have have something in a will. Right. But it's uncommon these days. I don't see that people are actually using it.
Nicole 00:31:23 Well, let's maybe talk about controversies in estate litigation. So I think one controversy is whether mutual agreements are an appropriate planning strategy. So there's a divide amongst lawyers. So some lawyers think that these are a workable strategy. So effectively mutual agreement is a contract between two individuals that on the last to pass away that the estate is going to be distributed in an agreed manner. It's often used in a blended family scenario. So blended families, when they don't have mutual children, there are some practitioners that are very adverse to these, and I think they feel that it circumscribed testamentary autonomy later, that it causes other issues.
Nicole 00:32:10 And there seems to be sort of a downtown suburban divide, and that sometimes the downtown lawyers won't do them in, the suburban lawyers will do them. I find that interesting. so I think that's one controversy. The other controversy. I don't know, Aaron, if you want to talk about is the whole ability to sue under the Wills Variation Act. So we used to have the Wills Variation Act of British Columbia. It was encompassed within the Wills, Estates and Succession Act, section 60. But some lawyers, maybe the litigators, think we should have a right to very wills, particularly if they're very unfair, maybe for cultural reasons, where they're giving the whole estate to one child. But some people think that we shouldn't interfere with this, and that people work hard for their money and they should be able to do what they want. Can you speak to that controversy about whether we should even have this legislation?
Aaron 00:33:01 The Wills Variation legislation? Well, I have, I'd say, a somewhat unique perspective on it because, as I said at the top, I came from Toronto, where there is no Wills variation.
Aaron 00:33:12 So I was dealing in Toronto with what is similar but different, which is dependence, relief, dependence, support claims, and for to bring one of those claims. It's it's similar to Wills variation. But you need to show that you are dependent. You need to show that you depended on the deceased for Support. So it's quite jarring to come to BC and learn. I had heard some things about this will's variation, but to come learn about it and really dive into it. Now, at this point in my career, I've dealt with dozens of these, and I'm not going to say one way or another if I think they should exist. I mean, I think that there is good reason for them. I think there is good place for them. I think that they are overused. And the way the law is now, it seems that every child that thinks that they, you know, sometimes even if they got an equal share, every child that thinks they can or should get a little more, why not throw out a Wills variation claim, delay the estate and you can maybe probably get a settlement without even potentially spending too much money.
Aaron 00:34:20 A lot of these are also going to lawyers on contingency basis, and you don't have to spend any money and just try to get some settlement. That is probably it's gotten to be a little too much, but I don't have a solution for how to stop that because as I said, I do think that there is a place for Wills variation as long as the judges uphold the other side, which is testamentary autonomy. Sometimes in the Forest of Wills variation, I find that we're talking about all these factors, about the whole history of someone, a child's life or a spouse's relationship and why they should get more. But what gets lost? Is there still testamentary autonomy? That's still, I would say, a pillar of the law here.
Nicole 00:35:10 Can I ask you another spicy question.
Aaron 00:35:13 Please?
Nicole 00:35:14 So with the advent of no fault insurance and that there are significant numbers of former personal injury lawyers maybe looking for a new practice area, the word on the street. And I don't know if this is true or not, but that a number of these lawyers are flowing into family law, but also possibly estate litigation and just throwing cases out on contingency basis.
Nicole 00:35:37 Are you seeing an uptick in that, or is that just more an urban myth?
Aaron 00:35:42 I am seeing a lot of wills variation cases. I can't necessarily say myself that I'm seeing more than I did, you know, 5 or 6 years ago. still seeing a great deal. And I think that has to do with it. Might have to do with lawyers coming into this area, which I welcome, because, you know, I'm also, defending a lot of those cases. And that's that's fine for me, but I think it's also what I said before, which is the law is the cases are so permissive of these cases, even when they have very little merit. And so there is justification for these cases to just keep coming even when there's an equal distribution, even when there's very little reason to justify a Wills variation. Why not throw one out? And that's what I'm seeing. That's what I think is one of the big factors behind a lot of these cases right now.
Greg 00:36:40 Aaron, what would you think that some of the best practices would be to avoid ambiguity in disputes regarding spousal status in estates?
Aaron 00:36:49 Yeah.
Aaron 00:36:49 So, I mean, of course, there's the the things that I spoke about before agreements or memos, but I mean, just having clear communications with a partner, with your lawyer, with your family, about your relationships, you know, that might all be brought up as evidence later and it might be contested. But clear communication, I think, is important. Not everyone's comfortable talking about those things, right? I mean, you get a lot of elderly parents who are not going to be wanting to talk to their children necessarily about their new girlfriend or boyfriend or spouse or partner, whatever, have you. But, you know, if you're not going to communicate, you're going to have ambiguity, right? Because if you just if you're just showing up to the Christmas dinner with someone, but you're not actually communicating about who that person is in your life, you're asking for ambiguity. Agreements, of course, provide communication to the world about your intentions. But those agreements, what they mean and their validity can be argued as well.
Aaron 00:37:52 So those are just speaking to the world, whether it's verbally or through agreements, through written means of what your relationship is. That I think is the best thing you can do to decrease ambiguity. And of course, going to a lawyer, right? A lawyer is always going to help you through these issues.
Nicole 00:38:13 Those are amazing tips. Although those people with secret families maybe aren't the best communicators.
Greg 00:38:19 No. Likely not.
Aaron 00:38:20 No, no that's true. Yeah, that's that's one you're not going to get communication about.
Greg 00:38:24 Any final tips Aaron, for our listeners.
Aaron 00:38:28 What I do see a lot is DIY. Do it yourself. Legal steps to try to avoid certain issues and it just makes bigger problems. The most common ones I actually mentioned this is putting assets into joint ownership, putting a property into joint ownership with a spouse without having some written agreement or discussion about how that is supposed to work. That just breeds ambiguity. So go to a lawyer. Go to a lawyer that you trust more than anything.
Aaron 00:39:03 And that's the best way to avoid ambiguity and to make sure that your intentions can come to fruition after you pass.
Nicole 00:39:11 Amazing, Aaron, how can listeners find you to learn more very easily?
Aaron 00:39:16 I am at Clark Wilson. My email is apearl@cwilson..om. Clark Wilson has a robust website of course. And my face is right there. So please feel free to contact me with any estate issues, estate litigation issues, trusts, etc..
Nicole 00:39:35 Okay. Thank you so much.
Aaron 00:39:36 Yeah, thank you so much.
Greg 00:39:37 Thanks, Aaron.
Nicole 00:39:38 This podcast is for informational purposes only and should not be considered individual, legal, financial, or tax advice. Make sure to consult the advisor of your choice to advise you on your own circumstances. Thank you for joining us for this episode of Your Estate Matters. If you like this podcast, make sure to follow it on your podcast platform of choice.
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