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Digest of the Week | Fiduciary Relationship

Volovsek v. Donaldson | 2019 BCSC 1820 | British Columbia Supreme Court

Family law --- Miscellaneous

Plaintiff was in relationship with deceased from 1989 until his death in 2015, and she claimed that it was marriage-like relationship — Prior to his death, deceased, successful businessman, transferred virtually all his assets into two alter-ego trusts and he made will — Combined effect of will and trusts was to distribute his estate to his siblings and to plaintiff in equal shares, with plaintiff receiving approximately $1 million — Plaintiff claimed that deceased was entitled to do estate planning, but he had duty to advise her in advance of plan so she could make informed decision about what to do, and had she been informed she would have separated from him and triggered right to division of family property — Plaintiff brought action seeking damages for breach of fiduciary duty — Action dismissed — Issue of whether plaintiff and deceased were actually in marriage-like relationship may inform issue of whether deceased owed alleged fiduciary duties to plaintiff — If there was no marriage-like relationship, while plaintiff still alleged she was owed fiduciary duty, she acknowledged what she received satisfied that duty — Plaintiff and deceased had long relationship, deceased financially supported plaintiff, but finances were not intertwined and deceased always declared himself as single on his tax returns — Plaintiff took care of deceased when he was sick — Plaintiff and deceased maintained separate residences until 2010 when plaintiff went to live with deceased while her condominium was being renovated, but they had separate bedrooms at deceased's insistence — Deceased never met plaintiff's mother, and plaintiff only went with deceased to visit his family once — While there was undoubtedly close long relationship between plaintiff and deceased and they took some trips together, there was very little physical or documentary evidence as to relationship — There was very little evidence of shared time or activities — Deceased rarely ate at home, and he ate out with friends or on his own far more often than with plaintiff — Plaintiff and deceased were not sexually active after 1999 because she claimed he was impotent, but deceased had sexual relationship with another woman in 2013 — Deceased never referred to plaintiff as his spouse or partner, and he never told his family he was in serious relationship with her — Plaintiff never discussed relationship with deceased, deceased did not intend to be in marriage-like relationship as he valued his freedom and independence, and plaintiff was aware of that — Marriage-like relationship was not tantamount to close relationship, and taking all factors into account, there was no marriage-like relationship.
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