Gibbons v. Livingston, 2018 BCSC 1452 & 2018 BCCA 443

In the 2018 decisions of Gibbons v. Livingston, 2018 BCSC 1452 and 2018 BCCA 443 our courts addressed competing family law and wills variation claims.

Following the death of her common-law spouse, Graeme Livingston, Vicki Gibbons sued to vary his will, which left his entire estate to his son and left nothing to Ms. Gibbons. The primary asset passing through the estate was the home in which the couple resided valued at approximately $308,000.

On his death, assets passed outside Mr. Livingston’s estate to both his son and Ms. Gibbons. His son was the beneficiary of an RRSP of approximately $125,000, while Ms. Gibbons received a life insurance policy of $350,000 and approximately $3,000 per month as the beneficiary of Mr. Livingston’s pension.

The parties agreed to settle Ms. Gibbons’ claim at mediation and, as such, her claim to vary Mr. Livingston’s will was not considered by the court.

After failing to comply with the terms of the settlement agreement, Ms. Gibbons amended her lawsuit to claim that the settlement agreement was unjust, unfair, and inequitable, and advanced a claim for property division under the Family Law Act. The basis of the new claim was, believe it or not, that she and Mr. Livingston had separated as a result of his death, triggering her entitlement as a separated spouse under the Family Law Act. In her submission, the settlement agreement was only meant to address her claim for variation of Mr. Livingston’s will under the Wills, Estates and Succession Act, and that it was not meant to address her rights with respect to a family property claim under the Family Law Act.

In the initial application, the Supreme Court did not accept Ms. Gibbons’ claim, and confirmed that the Family Law Act is meant to address rights between living spouses on the breakdown of a relationship. The Wills, Estates, and Successions Act is meant to address a spouse’s rights upon death of their spouse. As such, it was that law that governed.

The Court also declined to overturn the settlement agreement on the grounds that Ms. Gibbons did not understand the terms due to her mental state. As there was no evidence of fraud, duress, lack of capacity or mutual mistake, the Court had no alternative but to enforce the agreement.

Ms. Gibbons appealed that decision. The Court of Appeal refused to interfere with the trial judge’s decision. Importantly, the Court of Appeal rejected Ms. Gibbon’s claim that the Supreme Court erred in finding that the death of a spouse does not constitute separation. The Court confirmed that, while family law principles are considered, the Wills, Estates, and Succession Act is the legislation under which a surviving spouse may advance a claim.

The Court of Appeal also highlighted the fact that a separated spouse is still able to commence family law proceedings after the death of their spouse, provided they are within the limitation period. While separation is an event that occurs between living spouses, a claim can still be advanced after the death of a separated spouse.

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