Guest written by Jessica Nolan, student-at-law at Fasken.

A recent case out of British Columbia offers a number of lessons for estate planning. Robledano v. Jacinto (2018 BCSC 152) involved the estate of Barbara Jacinto who died unexpectedly. Barbara had been in a relationship with Maria Robledano on and off for just over 30 years. In the final years before Barbara’s death, they were primarily living under separate roofs but Maria maintained that they were together. Maria spent her weekdays living with her aging mother to take care of her, and spent most of her weekends with Barbara. Barbara was a devout Catholic and the two kept their relationship rather private. When Barbara passed a way, a copy of her will was found, but the original could not be located. In the copy, Maria was named sole beneficiary. A dispute arose between Barbara’s siblings and Maria as to how the estate should be distributed. Maria’s siblings argued that at the time of Barbara’s death, she and Maria were only close friends.

The litigation was governed by B.C.’s Wills, Estates and Successions Act (“WESA”). Part III of WESA, similar to Part II of Ontario’s Succession Law Reform Act, provides for the order in which an estate should be distributed when an individual dies intestate. Maria sought a declaration that the copy of Barbara’s will had been proven in solemn form. In the alternative, she asked the court to find that she was Barbara’s surviving spouse within the meaning of s. 2 of WESA so that the estate would be distributed to her pursuant to s. 20 of the act. Barbara’s siblings took the position that her estate must be distributed to the siblings pursuant to s. 23(2)(c) of WESA, arguing that Barbara died without a spouse, children or a will, relying upon the common law presumption of revocation. This rule holds that a will is presumably revoked where an original will was in the testator’s possession but cannot be found after death.

Justice Fleming first found that the original will had been revoked based on the common law presumption of revocation. The presumption of revocation was not rebutted by any evidence to suggest that Barbara inadvertently lost the original. Given Barbara’s tendency to keep her affairs well organized, it was unlikely that she had lost or misplaced the will. Justice Fleming did not find, however, that the will had been destroyed because Barbara wanted to remove Maria as the sole beneficiary. Taking a flexible approach, Justice Fleming found that Maria and Barbara were in a marriage-like relationship for more than two years before her death, and, as such, the estate should be distributed to Maria. Considerations were given to the same-sex nature of their relationship, their living arrangement, Barbara’s devotion to the Catholic faith, the finding that the two did not declare themselves to be in a common law relationship on their income tax documents, and the private nature of their relationship. Ultimately, Justice Fleming found that evidence of their lifestyle, interactions and their expectations of one another proved their intention to remain together for a long time as partners.

The case offers a number of important considerations for estate planning. It demonstrates the need to be mindful about making one’s wishes abundantly clear, particularly if one’s family is not supportive of their wishes, and when one’s circumstances are not clear cut. Additionally, the case demonstrates the need to inform clients about the common law rule of revocation so that extra care will be given to the safekeeping of a will.