BC Wills Variation: Which Spouse Has A Claim

Professional Regulation

Which Spouse Has A Claim – First, Second (or Even Third)

The Wills, Estates and Succession Act (“WESA”) came into force on March 31, 2014 and made significant changes with respect to the interests of spouses, who have both a legal and moral claim when they are wrongfully left out of a will or substantially or partially disinherited. Firstly, it’s important to note that WESA changed the law and now marriage does not automatically revoke a will as it did under the Wills Variation Act.

This is important for two reasons:
  1. Spouses cannot automatically assume they will be a beneficiary just by  virtue of  marriage; and
  2. In the case of multiple marriages, if a spouse dies prior to creating a new will, their new spouse will need to commence an action to vary the will.
Defining Spouse Under the Wills Variation Act

One of the questions that often comes up is what about a circumstance where a person may have multiple spouses. The most common occurrence of this is when two people separate but do not get legally divorced while one of the spouses commences a long-term cohabitation with a new person.

Let’s consider an example:

Emily and Michael get married in 1990 and Emily separates from Michael with no intention to reconcile in 2005. Michael remains single while Emily begins cohabiting with Asher in 2007. Emily dies in August of 2014 and leaves her entire estate to the SPCA. Can Asher or Michael commence an action as a “spouse”?

At first glance, it appears that Emily has two spouses, Michael, who she never divorced, and Asher, who she has been living in marriage-like relationship with for seven years. However, under WESA, the title of  “spouse” is a defined term. Asher is considered to be a spouse under WESA because he and Emily lived in a marriage-like relationship for at least two years. Michael, despite still being legally married to Emily, is no longer considered a spouse since Emily terminated the relationship and they did not reconcile. Michael is not able to commence an action under section 60 of the Wills Estates and Succession Act.

Advice on Varying a Will

It is important that spouses whose partners have recently died seek legal advice shortly following death, as actions to vary a will must be commenced within 180 days from the date the representation grant is issued in British Columbia. Spouses, as defined by WESA, have a strong claim if they have been disinherited, partially or entirely with no justifiable reason.

Contacting a Wills Variation Lawyer in Vancouver BC

The Kushner Law Group typically offers complimentary consultations on wills variation and estate litigation matters and our office is happy to schedule a meeting to discuss your rights. Call our Vancouver law firm at 604-629-0432 or contact us online to learn more about how we can help you.

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