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Creating a valid will is one of the most important steps someone can take when undergoing estate planning. Unfortunately, even if a will has been created, they can be challenged by people who believe they should have been named in the will, perhaps suggesting that the will is not valid. In a recent case from the Court of Appeal for British Columbia, the court looks at a situation where an original will could not be located, and the sister of the deceased attempted to have the deceased’s partner revoked as beneficiary.

The background

The deceased (“J”) died unexpectedly on April 14, 2014. In a will she executed in 2011, she designated her same-sex partner (“R”) as her sole beneficiary. However, the original copy of the will was not ever found, and a trial judge declared J to have died intestate. R argued before the trial judge that even without a will, she should be considered the sole beneficiary due to the “marriage-like” relationship between her and J, who had no children.

One of J’s sisters (“Q”) argued that while J and R had at one time had a marriage-like relationship, it had since ceased to be one, and as such, R should not be considered a spouse under the provinces Wills, Estates and Succession Act.

The trial judge conducted an analysis and determined the relationship between J and R remained marriage-like at the time J died, and recognized R as the sole beneficiary. Q appealed the decision.

The appeal

The court first looked at the history of the relationship. They met in 1982 and began a romantic relationship one year later. They purchased a condo together in 1996 and lived together in a romantic relationship. In 2000, R explained that she wished to have children and was considering entering into a heterosexual relationship. The couple continued to live together, but stopped being sexually involved. Both parties eventually entered into romantic relationships with men, but later broke them off.

J and R began to see themselves romantically again in 2010 but did not ever live together again.

The court examined the judge’s examination of whether the parties re-entered a marriage-like relationship when they got back together in 2010, finding “the relationship did not end but rather struggled through and endured a serious crisis.”

The court found that the trial judge took the proper broad and holistic approach in considering whether the relationship was terminated, explaining “This was a case in which (R) clearly met the criteria for becoming a spouse under s. 2(1)(b) of the WESA. It was a case where there was some equivocal evidence that might have led a judge to an inference that the marriage-like relationship was terminated in 2010, but the judge did not draw that inference. It was also a case where the post-2010 evidence showed continued emotional interdependence, mutual commitment, and attachment in the years that followed.”

As a result, the appeal was dismissed.

At Derfel Estates Law, we regularly represent clients in all types of estate litigation, including in will challenges, and pride ourselves on providing our clients with personalized and transparent services. Contact us if you are considering filing an application to challenge a will so we can help you determine your options and rights. We can be reached online or by phone at 1-844-2-DERFEL.

For professional service and knowledgeable advice on Estate Law matters contact Derfel Estates Law

Contact Derfel Estates Law today to speak with a Toronto estate lawyer who will work tirelessly to achieve the best possible resolution to your will, estate, power of attorney, or trusts dispute.

Call us at 1-844-2-DERFEL or contact us using the form.

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