Separation, Remarriage and Undue influence all bring into play new rules under BC’s recently enacted “WESA” rules. Today we deal with separation and its impact on a BC Will under brand new wills and estates legislation called the BC Wills and Estates Succession Act (“WESA”).
Lorne MacLean, QC and Nick Davies bring over a half century of focused legal experience to Vancouver BC family law and wills and estates litigation. Both of these senior counsel handle high net worth family matters and complex estate dispute matters. Lorne MacLean, QC has handled a number of very high profile financial cases in the Court of appeal and has made two appearances in the Supreme Court of Canada.Our BC Estate and Will dispute litigation lawyers operate across BC with offices in Surrey, Vancouver, Kelowna and Fort St John and Dawson Creek BC. Separation, Remarriage and Undue influence all bring into play new rules under BC’s new WESA rules. Today we deal with separation. WESA and How It Deals with Marriage Breakdown and Separation “WESA”, our new BC Wills and Estates Succession Act, has dramatically changed the rules that apply to BC wills when an unmarried person, who in a marriage like relationship, separates from their former spouse. The act recognizes more persons live in committed relationships without getting married and now treats them as equals to married spouses for purposes of revoking gifts upon relationship breakdown. The official BC government WESA summary states as follows:
Section 56(2), changes the rules for judicial separation, divorce and nullity under the Wills Act and simply states:
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Section 56 carries forward the policy expressed in section 16 of the Wills Act that a gift under a will to a spouse is deemed to be revoked when the spousal relationship ends.
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The primary change is to extend the deemed revocation of a gift in a will to marriage-like relationships, as well as legal marriages.
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The reason for this change is that the current law places a former non-marital spouse of the will-maker in a better position than a former or separated marital spouse.
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Section (3) clarifies that a subsequent reconciliation does not revive a gift revoked by the operation of the legislation. The reason for this change is that allowing reconciliation to revive a previously revoked gift to a spouse would result in too much uncertainty. It might lead to disputes over whether the spouses had actually reconciled or whether the reconciliation persisted at death. If restoration is intended following reconciliation, it is open to the will-maker to make a new will or a codicil restoring the gift.
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Under section (4) a gift to a third party that is related to the life of the deceased’s spouse (an estate pur autre vie) is not revoked, even if the deceased divorces their spouse after making the gift in the will. o Such gifts should not automatically be revoked by the end of the spousal relationship because it is not certain that the will-maker intended the gift to be related to the fact of marriage.
The BC CLE WESA GUIDE provides this helpful summary on when one is or is not a spouse:
Section 2 of the WESA addresses when a person is a spouse for the purpose of the Act. The definition of spouse acknowledges both marriages and “marriage-like” relationships of at least two years, including relationships between persons of the same gender. Notably, there is no longer any express reference to “co-habiting” in the definition. The relevant date for the purposes of calculating the two years is the date of death unless otherwise stated. In addition to including a definition of when two persons are spouses, the WESA also includes a definition of when they are not spouses. Subsection 2(2) provides that two persons cease being spouses in the case of marriage:
- (1) when they live separate and apart for at least two years and one or both have the intention formed before or during separation to live separate and apart permanently; or
- (2) an event occurs that causes an interest in family property under the Family Law Act, S.B.C. 2011, c. 25, to arise.
Likewise, in the case of a common-law relationship, the spousal status ends when one or both persons terminate the relationship. The deemed termination of a legal marriage after a two-year separation with only one party’s intent to live separate and apart has several effects, the most significant of which are the loss of a married spouse’s right to vary a will under the wills variation provisions and the lengthening of the separation required before a legally married spouse will lose rights on intestacy.
When you face a difficult family estate dispute matter it makes sense to hire experienced and aggressive legal counsel to get you the best result. Call us now toll free across Bc at 1-877-602-9900. Our BC Unfair Will Variation and WESA Lawyers are dedicated to a just result for you.
