Wills Variation 2.0

Real Estate Law - Blog
March 25, 2014

Wills Variation 2.0

Nav Parhar - Blog Avatar - Law Firm Victoria BC
Nav Parhar

The Wills Estates and Succession Act (“WESA”) is the talk of the British Columbia legal community, as it is set to take effect on March 31, 2014.  In our last blog, we highlighted some of the changes that are coming as a result of this new legislation that is about to amalgamate and/or replace a handful of existing pieces of legislation.  In this blog, we will highlight one significant way in which the wills variation scheme in BC is changing under WESA.

A general principle in law is that someone who makes a will (the “Testator”) has the freedom to dispose of his or her property as they wish.  That is, after all, the purpose of a will, isn’t it?  Well, British Columbia is a rare jurisdiction that has allowed for an exception to this general rule over the years through the Wills Variation Act (“WVA”).  The WVA, in a nutshell, allows a spouse or child who feels slighted by their spouse or parent via the latter’s will, to challenge that will in the hopes that the court will exercise its powers to vary the will to make “adequate, just and equitable” provision for the challenging party.

The WVA will be swallowed up by WESA in less than a week.  Though it won’t change much, the one major change to wills variation under WESA relates to the definition of “spouse”.  The WVA defined a “spouse” as someone who was married to the Testator or in a “marriage like relationship” (common law, to the lay person) for at least two years immediately before the Testator’s death.   Under WESA, a finish line is implemented for when a spouse ceases to be a spouse for wills variation purposes.  Specifically, married spouses will lose their right to claim under the WVA after the expiration of two years of separation.  

In other words, if two spouses are still legally married, but have been legally separated for more than two years before one of them dies, the surviving spouse has no right to claim for variation under WESA.  This change will, hopefully, eliminate that unfortunate scenario where two parties are legally separated for years, but haven’t made their divorce official before one dies.  Under the WVA, that surviving spouse, who had unofficially been out of the picture for years but was still a legal spouse, retained a right to come out of the woodwork and challenge the will.  WESA will [hopefully] change that.

Overall, the wills variation mechanism isn’t changing nearly as much as some of the other statutes that are coming together with WESA, but this one definitional change is something to watch.   So what will happen under WESA when someone in a common-law relationship declares an end to their “marriage-like relationship” on their deathbed?  Look for our take on this inevitable circumstance in our next blog.

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