Can a Spouse Who Is Left Out of a Will Claim Against the Estate in BC?
This answer covers the law of British Columbia.
Yes, a surviving spouse can ask the court to change a will that does not adequately provide for them, and that is called a wills variation claim. Under section 60 of the Wills, Estates and Succession Act (WESA), the court may order the provision it thinks adequate, just and equitable if the will does not make adequate provision for the proper maintenance and support of the spouse.
You count as a spouse if you were married to the will-maker, or lived with them in a marriage-like relationship for at least 2 years, but a marriage-like relationship stops counting once one or both of you end it. Exception: married spouses stop being spouses under WESA when an event such as separation gives rise to an interest in family property under the Family Law Act. You are not treated as separated if, within one year, you resumed living together mainly to reconcile for periods totalling at least 90 days.
The claim must be started within 180 days from the date the grant is issued in British Columbia. How a family property claim under the Family Law Act fits with a wills variation claim depends on your facts, and a lawyer can confirm which route suits you.
Key takeaways
- If a will does not make adequate provision for a spouse's proper maintenance and support, the court may order the provision it thinks adequate, just and equitable.
- You are a spouse if you were married to the will-maker or lived with them in a marriage-like relationship for at least 2 years.
- Married spouses stop being spouses under WESA when an event such as separation gives rise to an interest in family property under the Family Law Act, unless the reconciliation rule applies.
- The claim must be started within 180 days from the date the grant is issued in British Columbia.