What is an adequate bequest for a common law spouse?

  • It depends on the circumstances of the testator, the spouse, and the children (if any).
  • The starting point is to consider what the testator’s legal obligations are under the family laws relating to spousal support and the division of family assets.
  • After the legal obligations are considered, the testator’s moral obligation to the common law spouse may result in an increase in the size of the gift.

 Unless the parties signed a cohabitation agreement, the testator’s legal obligation to a common law spouse is generally limited to spousal support.  However, the testator may have a strong moral obligation to the surviving spouse, requiring a large bequest.

In Hall v. Korejwo, the testator and his common law wife lived together for 4 years.  He made a will that left 87% of his estate to his wife and 2% to a son.  The son had been estranged from his father for many years, but had reconciled 1 ½ years before the testator died.  The son sued, claiming his share was too small.

The Court of Appeal decided that the son should get 13% of the estate, and the wife 76%.  The testator had a substantial moral obligation to his wife.  She had been a faithful and loving companion and had nursed him through his final illness.  He had promised to take care of her.  The only way of honouring his legal and moral obligations to her was to give her the bulk of the estate ($335,000).

However, the gift of 2% to the son was too small a bequest.  The son had some physical disabilities, had a limited ability to work, and had limited assets.  This created a moral obligation to provide for the son.  A gift of $60,000 was adequate to meet the moral obligation.

If you are unsure whether a bequest was adequate, we can help. Contact us.

Read the case:  Hall v. Korejwo

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