In British Columbia today, many couples choose to live in a common law relationship, without legally marrying. They often refer to one another as his or her “spouse”, and there are not many practical differences between a couple who is legally married and one who cohabits in a common law relationship. However, there can be significant legal differences, as shown by the recent case of the British Columbia Supreme Court, MacLean Estate 2009 BCSC 1159.

Mr. MacLean cohabited with Ms. Christiansen, beginning in August 2003. In 2006, they decided to legally marry the next summer. The couple had wills drafted in 2007, prior to the marriage. Mr. MacLean’s will created a spousal trust for Ms. Christiansen, to be used for her benefit during her lifetime with the balance to be paid to his children of a former marriage upon Ms. Christiansen’s death. The will referred to Ms. Christiansen as the deceased’s “spouse”, although they were not legally married at the time of its execution. There was no specific reference to their upcoming marriage in the will.

After the will was executed, the couple married and travelled to Italy on their honeymoon. While there Mr. MacLean suffered a heart attack, and died some months later, never having regained consciousness.

Unfortunately for the couple, the Wills Act provides that marriage revokes a will executed prior to a marriage, unless the will contains a declaration that it is made in contemplation of the marriage. The Court was asked to determine whether these sections of the Wills Act applied, or whether the reference to Ms. Christiansen as the “spouse” of the deceased was sufficient to show Mr. MacLean’s contemplation of marriage. The Court held that it was not sufficient, and consequently, that the will was invalid.

The Court stated, “It is obvious that the result dictated by the Wills Act is inappropriate in this case. If the testator had made his will when the parties were not legally married and the parties had remained in a common law relationship from and after [that time], the will would have been valid. What defeats the will is the conversion of a marriage-like relationship, which is accorded virtually all of the rights and obligations attached to a legal marriage, to one of legal marriage.” The Court then noted that proposed new legislation (the proposed Wills, Estates and Succession Act) does not contain the same provision that marriage revokes a will. (For more information on the proposed legislation, please see our article Second Time is the Charm from the October 2009 Your Estate Matters.)

The point to take from this case is that while there may not be many day-to-day differences between a common law marriage and a legal marriage, there certainly are legal differences. It is critical to review wills prior to a legal marriage to ensure that the wishes of the testator may be fulfilled.