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Wills, Estates and Succession Act: Separation Revokes Your Inheritance

Kevin Heinrichs

Written by: Kevin Heinrichs (View All Posts • View Bio) Published: June 16, 2014

Categorized: Wills and Estates.

On March 31, 2014, the long awaited Wills, Estates and Succession Act (known in the legal community as “WESA”) came into force.  It was a long time coming, as the WESA was introduced by the B.C. government in September, 2009 and obtained Royal Assent on October 29, 2009.  Almost five years later, and after undergoing changes to accommodate the new property division regime in the Family Law Act, the WESA is finally here.

 

The WESA combines the previously separate Estate Administration Act, the Wills Act, and the Wills Variation Act, so that now all provincial legislation governing inheritances is located under one Act.  The WESA contains some provisions which are important to keep in mind in your family law case. 

First, the WESA defines spouse in a similar way to the Family Law Act.  Pursuant to s. 2 of the WESA, two persons are spouses for the purpose of the Act if they were both alive immediately prior to the Will-maker’s death and they were married or had lived in a marriage-like relationship for at least 2 years.  Both married and unmarried spouses  cease being spouses when they separate.  That’s right, you don’t have to be divorced to lose your status as a married spouse when applying for relief using the provisions of the WESA!

Second, the WESA provides that a spouse’s entitlement to an inheritance from the other spouse will terminate if the two separate.  S. 56 of the WESA says that if the spouses separated after the Will is made, but before the will-maker dies, when the time comes to distribute the estate any inheritance to the surviving spouse must be distributed instead to the other beneficiaries as if the surviving spouse predeceased the will-maker.

Now, s. 2 of the WESA does allow for the fact that some separations are temporary, and rightly does not revoke spousal status forever based on a temporary separation.  Pursuant to s. 2(2.1), spouses who live together for at least 90 days with the primary purpose being to reconcile, regain their status as spouses.

However, that reconciliation pursuant to s. 2(2.1) does not reinstate those revoked inheritances named in the will to the surviving spouse.  S. 56(3) of the WESA specifically says that a subsequent reconciliation does not reinstate provisions of a will which are revoked because of a separation.

So what does all of this mean?  It means that if you and your spouse experience a separation, and later get back together, you ought to execute a new Will or Wills.  Otherwise, the surviving one of you will receive nothing under the Will-maker’s Will, and will be left with the only option of starting court proceedings against the executor or personal representative in order to obtain a share of the estate.  This can be so even where the temporary separation occurred many years before the death.  Imagine having had a temporary separation 20 years ago, only to find that your spouse’s will, executed 25 years ago, provides nothing for you because of these revocation clauses!

It is always a wise idea, when you are experiencing a temporary or permanent separation from your partner, to seek the advice of a family law lawyer to determine how your rights and entitlements may be affected.

Virginia Richards

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