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The recent decision of Mayer v. Mayer 2018 BCSC 2225 highlights the importance of clarity in estate planning and the limitations of section 60 of the Wills, Estates, and Succession Act, which permits spouses and children to seek an order varying a will.
This decision involves a claim by the daughter of one Otto Mayer seeking, among other things, a 50% interest in the real property held by Mr. Mayer and his common law spouse, Ursula Breidt.
Upon Mr. Mayer’s death, the real property, held in joint tenancy with Ms. Breidt, passed to Ms. Briedt as the surviving joint tenant. The two had been in a common-law relationship for 35 years and had purchased the home together in 1986.
Under Mr. Mayer’s will, he left half of his estate to Ms. Briedt and the other half to his daughter from a previous marriage, Erika Mayer. The will included a provision that, should Ms. Briedt predecease him, the real property or any replacement property was to be transferred to Ms. Mayer and Ms. Briedt’s son, with the balance of his estate was to pass to Ms. Mayer. Ms. Briedt executed a will that mirrored the terms of Mr. Mayer’s will, with the balance of her estate going to her son if Mr. Mayer predeceased her.
As the real property passed outside of Mr. Mayer’s estate, his actual estate only consisted of bank accounts totaling less than $17,000. Mr. Mayer’s financial assets had diminished significantly in the years prior to his death as a result of his gambling.
Following Mr. Mayer’s death, his daughter brought a claim seeking a 50% interest in the real property. She also sought an order declaring that the joint tenancy had been severed and a declaration that the property was held in trust for the estate.
In advancing her claim that joint tenancy had been severed and that the property was held on a resulting trust, Ms. Mayer relied on the mirror wills executed by Mr. Mayer and Ms. Briedt. She also relied on statements made by her father during his lifetime in which she alleged he had told her that 50% of the real property was to go to Ms. Mayer.
The Court declined to find that the mirror wills were mutual wills, holding that wills did not meet the standard of expressing a clear and unequivocal intention as to what was to be done with the property. The terms of a mutual will are binding on the parties; alternatively, a party can revoke and alter the terms of a mirror will at any time. As such, executing mirror wills did not constitute a course of dealing that would sever joint tenancy. In addition, the Court found that he statements relied upon by Ms. Mayer were found to be too vague and uncertain to be given weight.
Ms. Mayer advanced additional resulting trust claims based on unjust enrichment and good conscience. These, too, failed. The Court found that Ms. Mayer had made no contribution to the property and that the intention for the property to pass to the surviving spouse on death was a juristic reason for Ms. Briedt to receive the property. The Court did not accept Ms. Mayer’s claims that Ms. Briedt did not contribute to the purchase of the property and mortgage payments.
Ms. Mayer also sought an order varying her father’s will to increase her share of the estate. Had the Court found that Ms. Briedt held Mr. Mayer’s interest in the real property in trust, this interest would have formed part of his estate.
As Ms. Mayer’s claims relating to the property failed, the amount to be divided between Ms. Mayer and Ms. Briedt under Mr. Mayer’s will was less than $17,000. The Court declined to make an order varying the equal distribution of the estate between Ms. Mayer and Ms. Briedt, holding that while Mr. Mayer had both a moral and legal obligation to provide for his spouse, he had only a potential moral obligation to provide for his independent, adult daughter under his will.
As this decision highlights, only assets that pass through an estate can be subject to a wills variation claim. This provision cannot be used to advance a claim relating to assets that pass outside an estate through, for example, joint ownership. Claimants wishing to advance claim for assets that pass outside of an estate must rely on other areas of law such as the law of trusts.
