Deck litigation, an estate without a will, and criminal jury trials almost back to normal

This week on Legally Speaking with Michael Mulligan:

Twenty-five years ago, a man and his family moved into a home they had built in the Highlands with only a temporary occupancy permit. A final occupancy permit was never obtained, and the lack of compliance was noted on title.

As his wife passed away and his children had moved out, the homeowner decided it was time to sell the home.

The homeowner hired a contractor to complete some repairs including work on some badly weathered decks. The agreement to do the work was oral and the scope of the project changed several times.

The contractor was asked to replace two smaller decks completely but, to save money, only replace the decking on a large main deck.

The contractor pointed out to the homeowner that the structure of the main deck was rotten but agreed to continue replacing only the decking.

When the home was listed for sale, a building inspector was called by a real-estate agent and several deficiencies were noted, including the rotten main deck.

The homeowner was upset that the building inspector had attended and demanded that the contractor replace the main deck as his own expense. The contractor refused because he had only been hired to replace the decking and litigation ensued.

Following a three-day trial, the judge concluded that while the contractor wasn’t responsible for the full cost of replacing the main deck, he shouldn’t have proceeded with replacing the decking given the rotten structure. The contractor was ordered to pay for the wasted time and decking material.

Because the homeowner sued in Supreme Court, seeking the full cost of a new main deck, and was awarded only $5,175, he is unlikely to receive costs that would ordinarily be awarded to a successful party because the amount awarded is within the jurisdiction of Small Claims Court.

The legal costs of the three-day trial are likely to have been substantially more that the amount awarded. The contractor represented himself at trial.

Also on the show, the BC Court of Appeal resolved a dispute over an estate that occurred because the deceased didn’t have a valid will.

The BC Wills, Estates and Succession Act has provisions that deal with who should receive an estate when someone dies without a will. If someone has a spouse and no descendants, the estate passes to the spouse.

The central issue on the appeal was whether the man who had lived with the deceased was her spouse.

The Wills, Estates and Succession Act provides that when someone is in a “marriage like relationship” for two years prior to someone’s death is their spouse.

There are a variety of factors that courts have looked at to decide if a relationship is “marriage like”.

The trial judge focused on the fact that the man and woman didn’t engage in a conjugal relation and concluded that the man wasn’t a spouse.

The Court of Appeal disagreed and pointed out that there should not be a checklist of factors and that relationships are diverse. 

The man shared a bed with the deceased for three years prior to her death. He took her to hundreds of medical appointments, did the grocery shopping, they shared meals and celebrations together and he testified that he loved her.

While, ultimately, the result is likely to have been in accordance with the deceased woman’s wished, several years or litigation and uncertainty could have been avoided if she had prepared a proper will.

Follow this link for a transcript of the show and links to the cases discussed.