How do you spell relief? Re-writing wills in Canada
Legal Resource Centre of Alberta Ltd. (LRC)
Imagine the following typical scenario. A woman aged 62 married a man in 1980 when he was aged 70. Both had two adult children from previous marriages. They separated in 1984 and divided the family assets, each receiving $28,000. Later that year she made a will leaving her entire estate to her two independent adult children. The couple resumed cohabitation soon after. The wife died in 1992, leaving an estate worth $18,000. One of her children was then in financially comfortable circumstances, the other less so. The surviving husband had pension income of $1,296 per month and savings of $22,000. He had used most of the funds received at the time of the 1984 separation to pay for his wife's medical expenses. After her death, he sued to receive money from her estate. He lost at trial and appealed. Held, on appeal, the only obligation owed by the wife during her lifetime was to her husband. He had expended his funds for her benefit, the estate was modest and the moral claims of the testator's children, who had not contributed to the estate, were not very high. In the circumstances, the testator failed to make "adequate, just and equitable" provision for her husband. He was entitled to the entire estate (Tweedale v. Tweedale Estate 1995). An 85 year old widower had been left $1 by his wife because he had deserted her to live with another woman. The main asset of the wife's estate was the matrimonial home, which had been bought in 1927 and registered in the wife's name although it had been paid for with plaintiff's money. The couple lived in the house continuously, except in 1976 when he deserted his wife and lived with another woman until 6 months before his wife died. The house was left to their sons. The plaintiff's present income was $3,600 from old age security benefits and $5,000 interest from his bank account. The widower was entitled to a life interest in the house. Evidence indicated the plaintiff had mistreated his wife and had breached his marital duties to her by living with another woman. The wife had agreed to a reconciliation prior to her death, however, and the house, which was the main asset of her estate, had been purchased and maintained by him. Having regard to these factors, the plaintiff's age, and the fact that he lived comfortably because the house was available to live in, he was entitled to a life estate in the house (Jensen v. Jensen 1982). One's moral obligation to dependents is judged based upon society's reasonable expectations of what a judicious person would do in the circumstances by reference to contemporary community standards. The delicate balancing act is not dealing with the cases of obvious need and ability to support. Rather it is where need is equivocal or minimal only by reference to how much the supporter had and how much was left to others. The judge then determines the role of the moral obligation to over-ride the deceased's final testamentary wishes and "claw back" some or all of the estate on moral grounds, not financial need.
Article deposited after permissions was granted by the editor of LawNow magazine, 06/28/2010.
Bowal, Peter, "How do you spell relief? Re-writing wills in Canada", Law Now, Oct/Nov 2000, Vol. 25, Iss. 2; pg. 27.