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Digest of the Week | Intestate succession

Question of whether relationship between parties was marriage-like required multi-faceted inquiry

Robledano v. Queano | 2019 BCCA 150 | British Columbia Court of Appeal

Estates and trusts --- Estates — Intestate succession — Inheritance by spouse — Same-sex spouse or partner

M and B were in relationship for almost 30 years — B executed will in 2011 designating M as sole beneficiary — Copy of will, but not original, was found after B's death — M asserted that relationship was marriage-like for most of time — M brought action seeking declaration that will contained in copy had been proven in solemn form, and order that will be probated as valid — In alternative, M sought finding that she was surviving spouse within meaning of s. 2 of Wills, Estates and Succession Act — Declaration was issued that M was B's surviving spouse; order was granted appointing M as estate administrator — Trial judge ruled that while it was unlikely B would have lost or misplaced original will it was not necessarily true that she destroyed original will to remove M as sole beneficiary — M and B were in marriage-like relationship for more than two years before B's death — B probably intended to update will, given certain property transactions — B's decision to keep copy of will and memorandum in place certain to be found made little sense otherwise — Same sex nature of relationship was important consideration in applying flexible approach to issue of marriage-like relationship — B's sister appealed — Appeal dismissed — Question of whether relationship between parties was marriage-like required multi-faceted inquiry and trial judge carefully examined evidence and fully considered history of relationship — Trial judge made no error in her approach to issue and conclusion that she reached was open to her on evidence before her — M was spouse under s. 2.1 of Act — Events of 2010 and 2011 showed there had been serious crisis in relationship that they had struggled through but not that relationship had ended — People do not have to live together to be considered spouses — Parties were not required to be living together at time of death or for two years prior to that — Section 2(1)(b) of Act used specific wording in past perfect tense that parties had lived together for two years and did not specify that it had to be immediate two years prior to death — M and B had lived together in marriage like relationship between 1985 and 2000 and 2005 and 2010 which satisfied requirements in s. 2(1)(b) of Act — Trial judge did not make any error of principle or palpable and overriding error in her assessment of case — Some evidence suggested that marriage-like relationship was terminated in late 2010, but there also were strong indications that relationship survived — Trial judge's finding that relationship survived and that remained "marriage-like" was open to her on evidence before her.
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