Husband Killed in Spousal Hostage Taking: Varied Will Structure Matters

Neufeld v. Dafoe BCSC 2016. The Supreme Court of British Columbia recently varied the Will of a deceased person to provide funds to a plaintiff, who insisted she was his common law partner. The facts were quite unusual: the plaintiff’s marriage ended after she was taken hostage by her husband during a police stand-off in which he was killed.

In Neufeld v. Dafoe the will only provided for the deceased’s three natural children and step-son, but the Court agreed that in cases where a deceased and a plaintiff were co-habiting in a marriage-like relationship when the deceased passed, the plaintiff was entitled to a share in the estate – and in this case, quite a sizeable one. The value of the estate at issue was approximately $160,000. The Court awarded the plaintiff a lump sum of $60,000.

The deceased could have taken further precautions other than simply not naming the plaintiff in his Will. He could have attached a “Wills variation declaration” to his Will that described his reasons for not leaving anything to the plaintiff.  Although that would not have been a complete defence to leaving her out of the Will, the Court does at least take those declarations into consideration.

This case also shed important light on how the Court views common-law marriages in cases like this one.   The plaintiff testified that she and the deceased began a sexual relationship in 1997. She testified that in 2002 he invited her to move into his home and from that point onwards they were involved in an exclusive relationship that was occasionally sexual.

The deceased’s family testified that the plaintiff was only invited to live with the deceased as a result of the traumatic incident that she had been through and that she was merely a friend of the deceased’s and certainly not his lover.

Although they did not commingle funds or sleep in the same beds, the Court held that the indicia of cohabitation in a marriage-like relationship were strong enough to satisfy the common law test, which was articulated  in Molodowich v. Penttinen, 1980 1537 (ON SC). The analysis in that case guided the Court’s decision; it is reproduced below:

(1)   SHELTER:

(a)   Did the parties live under the same roof?
(b)   What were the sleeping arrangements?
(c)   Did anyone else occupy or share the available accommodation?

(2)   SEXUAL AND PERSONAL BEHAVIOUR:

(a)   Did the parties have sexual relations? If not, why not?
(b)   Did they maintain an attitude of fidelity to each other?
(c)   What were their feelings toward each other?
(d)   Did they communicate on a personal level?
(e)   Did they eat their meals together?
(f)   What, if anything, did they do to assist each other with problems or during illness?
(g)   Did they buy gifts for each other on special occasions?

(3)   SERVICES:

What was the conduct and habit of the parties in relation to:

(a)   Preparation of meals,
(b)   Washing and mending clothes,
(c)   Shopping,
(d)   Household maintenance,
(e)   Any other domestic services?

(4)   SOCIAL:

(a)   Did they participate together or separately in neighbourhood and community activities?
(b)   What was the relationship and conduct of each of them towards members of their respective families and how did such families behave towards the parties?

(5)   SOCIETAL:

What was the attitude and conduct of the community towards each of them and as a couple?

(6)   SUPPORT (ECONOMIC):

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

(7)   CHILDREN:

What was the attitude and conduct of the parties concerning children?

The two lived together in an occasionally sexual relationship that was exclusive in that regard. Furthermore, the reasons for not sharing bank accounts or beds, which included tax concerns and sleeping peculiarities, were explained to the satisfaction of the Court. The Court heard that the couple shared meals together, assisted each other when they were ill or injured, attended family events together and shared household chores.

The Court accepted that the deceased might have down-played the role that the plaintiff played in his life to his family members as a result of their attitudes toward the plaintiff. Other testimony heard by the Court included the fact that the couple owned dogs together and that the deceased would call the plaintiff “ife”, meaning wife without a wedding.

Neufeld v. Dafoe provides great insight into the analysis undertaken by the Court in these types of situations, their implications for jurisdictions that have Wills variation legislation, and how to avoid or mitigate this result.

Greer Jacks practices law in Victoria and contributes to the update of EverGreen Explanatory Notes and the Use of Trusts in Tax and Estate Planning course from Knowledge Bureau.

Additional Educational Resource: Use of Trusts in Tax and Estate Planning course.