BC Separated Spouses Cannot Vary Unfair Wills. We get asked a lot of questions on what happens to estates for separated and divorced spouses. The law is very clear that BC Separated Spouses Cannot Vary Unfair Wills. When parties separate there is an impact on both family law rights of common law spouses and the estate rights of both married and common law spouses. The area is complex so reach out to us to make sure you are not foreclosed from receiving your fair share of child and spousal support and property division.
Under BC’s Wills, Estates and Succession Act (WESA), a will can be varied if it fails to make “adequate, just and equitable” provision for a spouse or child. The test focuses on both legal and moral obligations, allowing courts to redistribute assets even if the will-maker intended to disinherit them.
In the 2023 decision of Lee v Chao the court made it clear an ex-spouse cannot make a claim to vary a Will of their deceased former spouse. in this case the parties were separated for years, and the court concluded that the plaintiff and the Deceased were living separate lives when he died, and had been for many years before his death. There was no credible admissible evidence to the contrary. There was no evidence to suggest that they ever lived together for a period of 90 days after 2011, at the latest, so as to trigger s. 2.1 of WESA.
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[90] On all the admissible evidence, I conclude that the plaintiff played no meaningful role in the Deceased’s life for many years before he died
Positions of The Parties
[79] The plaintiff seeks an order pursuant to s. 60 of WESA that the Deceased failed to satisfy his legal and moral obligations to provide for her as his married spouse in the Will. The defendants deny that the plaintiff meets the statutory definition of a spouse. Accordingly, they say she lacks standing to vary the Will, as contemplated by WESA, s. 60.
Legal Framework
[80] The plaintiff’s WESA claim depends on her status as the Deceased’s married wife at the time of his death. Section 2 of WESA specifies when a person is a spouse under that statute as follows:
When a person is a spouse under this Act
(1) Unless subsection (2) applies, 2 persons are spouses of each other for the purposes of this Act if they were both alive immediately before a relevant time and
(a) they were married to each other, or
(b) they had lived with each other in a marriage-like relationship for at least 2 years.
(2) Two persons cease being spouses of each other for the purposes of this Act if,
(a) in the case of a marriage, an event occurs that causes an interest in family property, as defined in Part 5 [Property Division] of the Family Law Act, to arise, or
(b) in the case of a marriage-like relationship, one or both persons terminate the relationship.
(2.1) For the purposes of this Act, spouses are not considered to have separated if, within one year after separation,
(a) they begin to live together again and the primary purpose for doing so is to reconcile, and
(b) they continue to live together for one or more periods, totalling at least 90 days.
(3) A relevant time for the purposes of subsection (1) is the date of death of one of the persons unless this Act specifies another time as the relevant time.
[Emphasis added]
[81] Under WESA, a separated spouse no longer qualifies as a “spouse” and has no variation rights: Gibbons v. Livingston, 2018 BCCA 443 at para. 17. Separation is not defined in either WESA or the Family Law Act, S.B.C. 2011, c. 25 (the “FLA”).
[82] Section 2.1 of WESA provides as follows:
For the purposes of this Act, spouses are not considered to have separated if, within one year after separation,
(a) they begin to live together again and the primary purpose for doing so is to reconcile, and
(b) they continue to live together for one or more periods, totalling at least 90 days. Section 83 of the FLA contains identical language.
[83] In Sachdeva v. Sachdeva, 2013 BCSC 313 at paras. 87–93 [Sachdeva], Justice Armstrong discussed the hallmarks of separation and how to ascertain the date of separation when a specific date cannot be readily identified. His analysis involved the weighing of multiple social, economic, and domestic factors including whether or not the parties:
a) Intended to remain married;
b) Contributed to a joint home;
c) Engaged in sexual relations;
d) Carried on activities in public;
e) Shared financial resources; and
f) Participated in significant family events together
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The Court in Lee went on to summarize the evidence in support of the wife’s claim she was still in a relationship some 17 years after the parties ceased living together.
The Evidence
[84] In essence, the plaintiff relies on her status as the Deceased’s legally married wife at the time of his death to advance her WESA claim to vary the Will.
[85] There is a notable lack of evidence from any source, including the plaintiff, to suggest that she and the Deceased intended to remain married spouses up to the time of his death. The plaintiff’s evidence is silent regarding the commingling of finances, the mutual provision of care, an ongoing emotional commitment to each other, attendance as spouses at public or private events, or participation in shared social activities: Sachdeva, at para. 91. It is common ground that she and the Deceased did not engage in sexual relations during their marriage.
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Reach out to our WESA Vancouver unfair wills variation lawyers quickly if you have been left out of a Will as strict deadlines apply.
