500 THE ADVOCATE
VOL. 80 PART 4 JULY 2022
these circumstances, the assets will not form part of the testator’s estate at
death, hence taking them out of the reach of s. 60. Weintraub and Storey
suggest imposing a constructive trust over the assets, thus bringing them
back into the testator’s estate and hence back into s. 60.
One must appreciate the scope of the litigation involved in this suggestion:
first, one must win the constructive trust case; then, one must win the
s. 60 case. Both will no doubt be fought hard by the asset’s current owner
and the other beneficiaries under the will. Still, if the amount involved is
large enough and if a disappointed beneficiary has the funds to cover their
lawyer’s fees, it might be worth it.
Unfortunately, I disagree that such a constructive trust could ever be
imposed in these circumstances. I say that for two reason: the first relating
to the policy underlying s. 60, and the second relating to the nature of a constructive
trust.
SECTION 60
Section 60 is a “forced succession” provision that has an obvious and wellunderstood
policy behind it: when a person dies, he or she should not abandon
their spouse and children, financially speaking. We each have a moral
duty to take care of our family financially, as best we can; the moment we
die is our last opportunity to do that.
But s. 60 is limited to the testator’s estate for a good reason: in British
Columbia, we have no notion of “community property” between spouses.
Each spouse owns his or her own assets absolutely; until the moment of
separation or divorce, the other spouse has no legal or beneficial interest in
the first spouse’s assets. That spouse may give away their assets, or sell
them, or settle them on trust, or even leave them by the side of the road, if
they choose to do so. The reason for this seems self-evident: it would be
impossible for a system to be devised to keep watch over and track each
item of property held by spouses over a lifetime of marriage. Imagine having
to justify to your spouse or a judge, many years later, every dollar spent
on a cup of coffee or donated to a charity or a person living on the street,
each gift to a relative, each theatre ticket purchased and each pair of shoes
acquired. It would cause chaos.
In other words, our law does not give each spouse any expectation that
the other spouse’s assets will stick around until they die. If they do, great;
if they don’t, then too bad, that’s life. But to suggest that the disappointed
beneficiary could somehow go back and track down all assets disposed of
during the testator’s lifetime and challenge the current owner under a claim
of constructive trust seems contrary to the most fundamental notion of
ownership: the right to dispose of an asset as one chooses.