A spouse or a child of a deceased person may bring a proceeding to vary the deceased’s will if they believe that the will does not make fair provision for them.  But before the court will consider whether the will was fair, the person making the claim must establish that they have standing:  was the person actually a child or spouse of the deceased?  Standing as a “child” is fairly straightforward.  Whether someone was a “spouse” can be more complicated.

A Hypothetical to Consider:  The Unexpected Spouse

Consider this:  Your father passes away. Your mother died a few years before him and your father did not remarry.  He leaves a will, naming you as executor, and dividing his estate equally between you and your siblings.  You start administering the estate, when you are suddenly served with a notice of civil claim:  someone has started a lawsuit claiming to be your father’s spouse at the time of his death, and this person is seeking a share of his estate.

Perhaps the claimant is someone you believed to be only a “friend” of your father;

Perhaps the claimant is someone that you believed to be a “girlfriend” of your father, and you are aware that they went on a few dates, but you don’t believe they had been dating for more than two years, or that they were living together;

Perhaps the claimant was a roommate or tenant of your father;

Perhaps the claimant was a resident at the same care facility as your father; or

Perhaps you have absolutely no idea who the claimant is – you’ve never even heard of her.

Whatever the case, you do not accept that this person was your father’s spouse at his death.  What do you do?

The Onus is on the Person Claiming to be a Spouse to Prove a Spousal Relationship

It is important to remember that the onus is on the person claiming to be a spouse to prove a spousal relationship.

Two people are “spouses” for the purpose of making a wills variation claim if, at the date of death of the deceased (1) they were married to each other; or (2) they had lived with each other in a marriage-like relationship for at least two years.  Whether #1 is met is usually obvious.  It is #2 that causes problems.

For common law spouses (not legally married), a claimant must establish: (1) that he/she was living with the deceased for at least two years; AND (2) that he/she lived with the deceased “in a marriage-like relationship.”  Simply living together (i.e. roommates, friends) is not enough to meet the test.

The Court will Delve into the Details of the Alleged Relationship

In this type of case, the court will almost always be presented with two very different versions of the relationship.  The alleged spouse will claim a close and intimate relationship.  The beneficiaries will claim that the alleged spouse was a friend, or a roommate (or even a stranger).

The parties will have to present evidence to support their version of events.  The court will be forced to consider the intimate details of the relationship.  For example:

(1)   SHELTER: Did the parties live under the same roof? What were the sleeping arrangements?

(2)   SEXUAL AND PERSONAL BEHAVIOUR: Did the parties have sexual relations? If not, why not?  Did they maintain an attitude of fidelity to each other?  Did they eat their meals together?  What, if anything, did they do to assist each other with problems or during illness?   Did they buy gifts for each other on special occasions?

(3)   SERVICES: What was the conduct and habit of the parties in relation to preparation of meals, washing and mending clothes, shopping, household maintenance, etc…

(4)   SOCIAL: What was the relationship and conduct of each of them towards members of their respective families, friends, and the community?  Were they perceived as a couple in the community?

(5)   SUPPORT (ECONOMIC): What were the financial arrangements between the parties regarding the provision of or contribution towards the necessaries of life (food, clothing, shelter, recreation, etc.) or the acquisition and ownership of property?  Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship?

A fact-specific inquiry

Obviously, this is a very fact-specific inquiry – no two relationships are exactly the same, and different people have different views of what constitutes a “normal” common law spousal relationship.  Some factors may support a finding that there is a spousal relationship, while some factors may weigh against such a finding.  The court must weigh all of the evidence and make a determination.