In Gibbons v. Livingston, 2018 BCCA 1452, the Court clarified which claims should be made under family law and which under estate law. In this case, Ms. Gibbons and Mr. Livingston were in a common-law relationship before Mr. Livingston's death. Despite their relationship, Mr. Livingston left his estate entirely to his son. Ms. Gibbons brought a claim under s. 60 of the Wills Estates and Succession Act for a variation of his Will in her favour. This was eventually settled through mediation, but she did not comply with the terms of the settlement. She then advanced a claim for division of family property under the Family Law Act, arguing that she and Mr. Livingston had separated by reason of his death, and thus his assets should be distributed according to the Act. The Court of Appeal rejected this, holding that "separation" under the Family Law Act does not include the death of a spouse. Here, because Ms. Gibbons and Mr. Livingston had not separated before his death, she had variation rights under the Wills, Estates and Succession Act, but did not have a claim under the Family Law Act.
HOW DID A LAWYER HELP?
There are many different pieces of legislation that may affect your rights on the death of a loved one, and you do not have a choice of which ones will or will not apply. This can make the path to realizing the assets you are entitled to unclear. An estate litigation lawyer can clarify whether your claim is subject to the Wills, Estates and Succession Act and ensure that time, money, and energy are not wasting bringing a claim under the incorrect legislation. This case also illustrates how cases can be resolved without going to court: a lawyer can help guide you through mediation instead, for a quick and efficient resolution of your claim. The lawyers at our office will also provide referrals if you require assistance from a lawyer in family law or other practice areas.