What Constitutes a ‘Spouse’ Under WESA?

How British Columbia Defines a Spouse

The Wills, Estates and Succession Act (WESA) is the legislation that governs the probate process in British Columbia. Crucial to wills variation cases under the WESA is the question of standing, or sufficient cause and connection to the case to initiate legal action.

Spouses have the right to challenge a deceased loved one’s will if it does not provide adequate support and maintenance. Before disputing a will, however, it is important to know how the WESA defines spouses and recognizes their right to contest the provision of a deceased partner’s will.

Who Is Considered a Spouse in Estate Litigation Claims?

Part 2, Section 2 of the Wills, Estates and Succession Act defines a spouse as follows:

  • “2 persons are spouses of each other for the purposes of this Act if they were both alive immediately before a relevant time [i.e., the death of one of the partners] 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.”

This definition of spouse applies to both heterosexual marriages and relationships as well as same-sex marriages and relationships.

The same section of the WESA states that two people are no longer considered spouses if:

  • The marriage ends, resulting in the division of family property, assets, and debts.
  • “[I]n the case of a marriage-like relationship, one or both persons terminate the relationship.”

So, if you are divorced from your husband or wife, you will not be able to dispute the provisions of a will that your former spouse made after the end of the marriage. By the same token, if you were in a “marriage-like relationship” and broke up, and your significant other subsequently made a will that did not make a provision for you, you will not be able to commence proceedings to have the will varied.

However, in the event of a separation, the partners are still considered spouses if they “begin to live together again and the primary purpose for doing so is to reconcile” and/or they “continue to live together for one or more periods, totalling at least 90 days” within one year of separating.

When Can a Spouse Dispute a Will?

According to Division 6 of the WESA, spouses may dispute a will if the testator (the person making the will) fails to make “adequate, just and equitable” provision for them. Possible grounds for petitioning the court to vary a will include:

  • Disagreements on the partition of property – I.e., the spouse and other beneficiaries cannot come to terms on how to dispose of joint property owned during the marriage or marriage-like relationship.
  • Undue influence – The testator was coerced or pressured into making a will that does not satisfy the adequate provision requirement of the WESA.
  • Unjust enrichment – A party exerted undue influence on the testator that resulted in benefits that unfairly enrich said party at the expense of a spouse and other legitimate beneficiaries.
  • Testamentary capacity – A spouse may argue that the testator did not have capacity to draft a valid will, thus resulting in legally unenforceable provisions.
  • Disinheritance – It is important to understand that not all cases of disinheritance are invalid. However, if you suspect that your spouse failed to meet his or her obligations to you, you are within your rights to move for variation of the will.

What constitutes a provision that is adequate, just, and equitable is the principal issue in wills variation cases. The WESA requires that wills provide “proper maintenance and support” to spouses (as well as to children).

How Can Variation of a Will Benefit a Spouse?

Under the WESA, the court can make several orders to vary the will so that a spouse can receive proper maintenance and support from the estate of the deceased. Potential orders in your favour may include:

  • Transfer of property
  • Creation of a trust to provide maintenance and support to you and any children (biological and adopted) you had with your spouse
  • Lump sum payment from the estate
    Periodic payments from the estate

The authority of the court only extends to property and other assets located within British Columbia. As a result, the value of payments, the property that may be transferred, and other provisions that may be ordered by the court will only apply to the portions of your spouse’s estate that are in British Columbia. Property and assets located elsewhere in Canada or internationally will not be subject to these court orders.

Contact a Wills Variation Lawyer Today

If your spouse failed to provide adequate, just, and equitable provision for you in a will, it is important to know your legal rights. Klein Lawyers serves clients throughout British Columbia in wills variation cases, and we can help you dispute a will to get the maintenance and support you deserve.

Please call (604) 874-7171 (604) 814-7180 today for a free consultation. Our wills variation lawyers serve spouses in Vancouver, Abbottsford, Burnaby, Coquitlam, Langley, Surrey, and other areas of British Columbia.