Lorne MacLean, Q.C. manages our wealth preservation family law department in Vancouver, South Surrey and White Rock. MacLean Law is proud to have been named Vancouver’s top family law firm by Top Choice Awards.
Our top rated South Surrey high net worth family law and major estate litigation lawyers see real dangers for separating and remarrying spouses under the British Columbia’s new Wills, Estates and Succession Act and the new BC Family law Act.
You need to speak with one of our experienced South Surrey wealth protection family and estate litigation lawyers. We handle South Surrey Family Law and White Rock WESA Estate Disputes from our law offices at 15240 56th Avenue across from Brown’s Social House. Call Lorne at 604 576 5400 to meet with him in South Surrey or downtown Vancouver.
South Surrey Family Law Remarriage Nightmare
Our new BC Wills and Estates Succession Act known by the acronym “WESA” abolishes the old rule that remarriage revokes a prior Will and mandates that an old Will remains in force (except for gifts to former spouses). This leads to the nightmarish prospect of a new spouse (who is not even in the old Will) having to sue their deceased spouse’s estate to be treated fairly in they forgot to do a new Will!
South Surrey Family Law Separation Shock
Under BC’s WESA, a separation deletes gifts to a spouse in a Will, whether the couple later reconciles. Forgetting to do a new Will after litigation can lead to emotion laden litigation. It’s bad enough to lose a spouse but having to sue their estate after you lived for years in marital bliss after reconciliation is even worse.
Also under the BC WESA, a court order or separation agreement is no longer required to evidence a separation of married spouses. Separation will be a question of fact, taking into account the length of separation (two years or more), intention of the parties and the new single triggering event under the BC Family Law Act of separation. There is some confusion from the WESA wording as to whether 2 years separation is really required or whether the separation date itself is sufficient to cause an immediate revocation of any gift to a spouse in a will:
WESA Subsection 2(2) provides that two persons cease being spouses in the case of marriage:
- 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
- an event occurs that causes an interest in family property under the Family Law Act, S.B.C. 2011, c. 25, to arise.
White Rock Common Law Relationship Catastrophe
Both our BC Family Law Act and BC’s WESA treat married and common law partners as legal spouses after two years of cohabitation. If you are together in a common law marriage for over two years you can bring a claim to vary and unfair will but if you separate you cannot. In cases where a spouse dies after separation and before a spouse sues under the Family Law Act for property division and support all their rights for redress under either statute may well be extinguished.
It is unknown at this time whether the courts will simply adopt the past Family Relations Act case law that blocked any action being started after a spouse has died. There are differences between the old law and the new BC Family Law Act that suggest that an argument could at least be made that an action may be maintained against the estate of a deceased spouse.
Contact Our South Surrey Family Law and White Rock WESA Estate Dispute Lawyers Immediately
These pitfalls could happen to any South Surrey or White Rock family law or estate dispute client if they don’t speak with a lawyer immediately upon separation or if they are or have already entered into a new relationship married or common law relationship. The stakes are simply too high to ignore.
