The recent decision of the B.C. Supreme Court in Boughton v. Widner Estate 2021 BCSC 325 discusses a number of important estate litigation issues in the context of an unusual fact scenario: the deceased had a second “secret” family.

The deceased was a victim of homicide.  He did not leave a will. At the time of his death, the deceased was married (to Ms. Widner) and had two children. At the same time, he was in a long term relationship (with Ms. Boughton), which the parties at trial agreed was a “marriage-like relationship” of at least two years. He also had two children with Ms. Boughton.

Ms. Boughton knew that the deceased was married, but the deceased told her he would eventually obtain a divorce and marry her. Ms. Widner had no knowledge of the deceased’s relationship with Ms. Boughton.  The deceased was living a double life, telling Ms. Widner that he was working part of the week on the other side of Vancouver island, when he was actually spending time with Ms. Boughton and their children.

The headline of this article in the Vancouver Sun nicely summarizes the salacious circumstances: “Secret family and wife battle in court over dead Hells Angels prospect’s assets” https://vancouversun.com/news/local-news/secret-family-and-wife-battle-in-court-over-dead-hells-angels-prospects-assets

The evidence at trial was that the deceased was a member of the Hells Angels. Ms. Boughton claimed that the deceased told her many times that he paid for several properties that were registered Ms. Widner’s name. Ms Boughton sought orders that the deceased’s estate consisted of half of the value of the properties held in Ms. Widner’s name.

This decision addresses a number of important issues:

A person can have multiple spouses. The Court held that a deceased person can have two spouses at the same time for the purpose of the Wills, Estates and Succession Act. In particular, a person can be in a marriage-like relationship with someone who is still married to someone else. The Court declared that Ms. Boughton was also the spouse of the deceased, and so the deceased had two spouses at the time of his death. Ms. Boughton and Ms. Widner are each entitled to half of the deceased’s estate.

Ms. Widner argued that this cannot be the case, as it would sanction polygamy, which is an offence under the Criminal Code. However, it was previously decided that the criminal law prohibits “conjugal union” or “multiple marriages”, but does not extend to “conjugal relationships” or “common law cohabitation” (i.e. marriage like relationships).

Statements made by the deceased as to beneficial ownership of assets may be admitted as evidence. The Court considered whether statements by the deceased were admissible for the truth of their contents. The deceased allegedly made statements to Ms. Boughton that he paid for properties, even though they were registered in Ms. Widner’s name.   The general rule is that hearsay evidence is not admissible for the truth of its contents. However, hearsay statements may be admitted if it can be established that the evidence is necessary and reliable. In this case, the deceased was dead and so the requirement that the evidence be necessary was satisfied. The court was satisfied that some of the deceased’s statements were reliable. The judge did not accept that the deceased’s statements that he paid for all of the properties was reliable, as other evidence showed this was not the case.

An Estate may be entitled to an award for unjust enrichment. The Court found that the deceased contributed $150,000 towards the properties that were registered in Ms. Widner’s name, which resulted in an unjust enrichment to Ms. Widner. There was no juristic reason for Ms. Widner to retain the benefit of the deceased’s contributions. As a result, the deceased’s estate was awarded $150,000 from Ms. Widner.