In a recent decision of the British Columbia Supreme Court, the agreement between the deceased and his widow as to their financial arrangements and lifestyle was afforded significant deference in the determination of a wills variation claim. In Waldman v. Blumes, 2009 BCSC 1012, the Court was asked to vary the Will of the late Dr. Blumes by the adult daughters of Dr. Blumes, who were not named in the Will. Rather, Dr. Blumes left his estate to his second wife, who was the mother of his two sons. At the time the Will was prepared and at the time of his death, both of Dr. Blumes’ sons were infants.

The Court found that the gross value of the estate at the time of Dr. Blumes’ death was $1,868,362. This did not include the matrimonial home, valued at just over $1 million, which the deceased transferred to his widow shortly before his death. The Court considered the financial circumstances of the widow, including her ownership of other real properties, but concluded that due to the relationship between the deceased and his widow, and the lifestyle and roles they had each agreed to adopt, the testator owed a legal obligation to the widow of the “highest order”.

The Court also considered the daughters’ circumstances. The older daughter was divorced and lived in California, and deposed that she had limited income and poor health. She sought a variation based on need. The younger daughter was married and lived in Ontario. Her husband held an MBA and was employed as a consultant. She had recently retired as a teacher and was receiving a pension. She and her husband had recently completed a 9 month vacation touching many parts of the world. Their children were adults, and were enrolled in or graduating from university.

The older daughter sought a variation in the amount of $450,000 or 30% (there was a disagreement on the value of the Estate) and the younger daughter sought a variation in the amount of $250,000.

Ultimately, the Court did grant a variation of the Will, in the amount of $75,000 to each daughter. This was based primarily on the following factors:

1. The deceased married at age 70 and had his sons at ages 74 and 76. The widow did not pursue her career on a full-time basis in order that they could spend time together. They planned that she would be able to retire with the full benefit of his estate.
2. The older daughter failed to provide sufficient evidence to establish need.
3. The majority of the estate assets were acquired during the marriage to Dr. Blumes’ first wife, the mother of the adult daughters. Neither daughter received any bequest upon their mother’s death; it all passed to Dr. Blumes. The Court therefore awarded a modest amount to each daughter.
4. The Court acceded to the sons’ request to adjourn the determination of their claim in the event that the Will was not varied. Although the Will was varied, the Court acceded to the request because the variation was so slight.

In the result, we see that the Court will recognize and respect the agreements made between spouses, particularly where the prospects of the widow were reduced in reliance on the agreement made.

The other interesting point of this decision is that it proceeded by way of summary trial (one based on written evidence, not live testimony of witnesses). This procedure is becoming more common for wills variation claims, and can often reduce the time necessary for the hearing of the trial (which in turn reduces legal costs).