How The Law Views Divorced Widows

Divorced Widows Contesting A Will

In the following case, the British Columbia Court of Appeal confirmed that a divorced widow of a deceased is not a spouse of the deceased for the purposes of the Wills, Estate and Succession Act because an order for divorce has been pronounced. As such, a divorced widow does not have legal standing to apply to vary his or her former deceased spouse’s will and challenge its validity.

Carswell v Engle Estate, 2018 BCCA 164

In this case, the applicant, Margaret Carswell, was the divorced widow of the deceased, Robert Engle. The parties had married in 1987 and had entered into a prior marriage agreement which dealt with their respective interests in the matrimonial home. Ms. Carswell and Mr. Engle separated and an order for divorce was granted on August 17, 1993, however the property disputes between the parties were not addressed at that time.

Ms. Carswell later challenged the validity of the marriage agreement which the Supreme Court of the Northwest Territories found to be valid, a decision which was later upheld by the Court of Appeal of the Northwest Territories. Ms. Carswell’s remaining property claims in respect of the divorce proceedings were dismissed in 2006 for want of prosecution. In February 2014, a judge of the Supreme Court of the Northwest Territories also found that the marriage agreement created an express trust in favour of Ms. Carswell of one-half of the sale proceeds of the former family home, approximately $192,500. At that point in time, Ms. Carswell had not claimed the money she was awarded but was encouraged to do so by the court.

Mr. Engle died in September 2014. His final will left all of his property to his second wife, Roxy Engle. In May 2015, Ms. Carswell filed an application seeking an order allowing her to file a claim against Mr. Engle’s estate for an express trust in her favour, and allowing her to contest Mr. Engle’s will.

Mr. Justice Schultes of the British Columbia Supreme Court dismissed Ms. Carwell’s application in May 2016. Accordingly, Ms. Carwells appealed the decision to the British Columbia Court of Appeal (BCCA). In making its decision, the BCCA consulted sections of the Wills, Estates and Succession Act, SBC 2009, c 13.

Legal Standing

[21] The real complaint of Ms. Carswell is that she was not allowed to continue her pursuit of a claim to Mr. Engle’s estate. In this I consider the judge was correct. Section 60 provides:

60 Despite any law or enactment to the contrary, if a will-maker dies leaving a will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the will-maker’s spouse or children, the court may, in a proceeding by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the will-maker’s estate for the spouse or children. [Emphasis added.]
[22] Section 2 sets out that persons cease being spouses of each other for purpose of the Act if “in the case of a marriage, an event

occurs that causes an interest in family property, as defined in Part 5 [Property Division] of the Family Law Act, to arise”. A divorce is such an event.

[23] Ms. Carswell clearly lacks standing to vary or otherwise contest the will, and cannot now bring a claim to that effect. Of the many reasons for that conclusion, the most basic is that Ms. Carswell, by virtue of the valid order of divorce, is not a spouse and so cannot bring herself within the ambit of legislation she must invoke to obtain a remedy, or within the ambit of the provisions of the Supreme Court Civil Rules allowing her to contest Letters Probate.

The BCCA dismissed Ms. Carswell’s appeal.

The Significance of Independent Legal Advice in Assessing a Claim of Undue Influence

Undue influence is an equitable doctrine to save people from being victimized. There are two classes of cases involving transactions claimed to be induced by undue influence. In cases where the defendant and the supposed victim were in a relationship of dependency involving a potential for domination of the victim by the defendant, and the transaction involved a gift or bequest, undue influence is presumed and the burden lies on the defendant to show that the victim entered into the transaction as a result of his or her own full, free and informed thought. Where there is a possibility of undue influence, effective independent legal advice requires that the lawyer must not confine herself to confirming the client’s understanding of the legal mechanics and voluntary assent to the transaction. The British Columbia Court of Appeal decision in Cowper-Smith approved a list of considerations for evaluating the significance of legal advice received in assessing a claim of undue influence.

Davy v Davy Estate, 2019 BCSC 1826
In this case, the deceased, Darline Davy, died in 2012. She was predeceased by her husband and survived by her four adult children. Mrs. Davy’s youngest son, David, had been living with her since 1995 and caring for her since the death of her husband in the spring of 1996. Mrs. Davy had been suffering from dementia at the time or her death and her principal asset was her ownership interest in her house.

In a series of transactions in 2007, Mrs. Davy remortgaged her home to borrow substantial additional funds and transferred the home to herself and David as joint tenants. She also made a new will naming David as the primary executor and providing for the equal division of her estate among her children. Mrs. Davy was provided legal advice by Ms. McGowan, initially introduced as the lawyer acting for BMO Bank during the remortgaging

transaction of her home. Ms. McGowan was later retained to complete the transfer of the home and to prepare Mrs. Davy’s new will.

In 2011, Mrs. Davy and David borrowed more money against the security of a second mortgage over the home. David received some of the funds borrowed through the 2007 and 2011 mortgages for his own use and to pay off accumulated personal debts. He used the rest for renovations to the home. The legal effect of the transfer of the home into joint tenancy was that, when Mrs. Davy died, the home passed to David and did not become part of Mrs. Davy’s estate. The remaining assets of the estate are inconsequential. David’s brother and sisters receive nothing.

Estate Litigation Lawyer Angela Price-Stephens

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