Can a Common-Law Spouse Challenge a Will in British Columbia?

Losing a partner is hard enough. Finding out that you were left out of their will, or given very little, can leave you wondering whether the law treats an unmarried partner differently from a husband or wife.

In British Columbia, it can treat you the same way, but only if certain conditions are met. This article explains who counts as a spouse, when that status ends, the deadlines that apply, and the practical steps worth taking early.

This article covers the law of British Columbia.

Who counts as a spouse in British Columbia

Under section 2(1) of the Wills, Estates and Succession Act (WESA), two people are spouses if they were married to each other, or if they had lived with each other in a marriage-like relationship for at least 2 years. So being unmarried does not, by itself, shut you out.

Spousal status is generally judged as of the date of death. What matters is the state of the relationship at that point, not how it looked years earlier.

Only a will-maker's spouse or children can bring a wills variation claim under section 60. If you qualify as a spouse, you are within the group the section names. Other relatives, friends and beneficiaries are not.

When a partner stops being a spouse

The law also says when spousal status ends. For unmarried partners, a marriage-like relationship stops counting once one or both people end the relationship. A former common-law partner whose relationship ended before the death is not a spouse who can claim.

Married spouses are treated differently. They stop being spouses for WESA purposes when an event occurs that gives rise to an interest in family property under the Family Law Act, such as separation.

There is a reconciliation exception. Spouses are not treated as separated if, within one year, they resume living together mainly to reconcile and do so for one or more periods totalling at least 90 days.

• Living together as a couple for 2 years or more at the date of death can qualify you.
• A relationship that one or both of you ended before the death generally does not.
• A short reconciliation may matter, but only if it meets the one-year and 90-day tests.

What kind of claim you would be making

Under section 60 of WESA, if a will does not, in the court's opinion, make adequate provision for the proper maintenance and support of the will-maker's spouse or children, the court may order the provision it thinks adequate, just and equitable in the circumstances be made out of the estate.

This remedy is written around a will-maker who dies leaving a will, and on its face it is a remedy against a will rather than against an intestacy, which is a death without a will. If there is no will, your position depends on the facts and on other rules, so it is worth getting legal advice early.

A will can also be challenged as invalid on separate grounds, such as the will-maker lacking mental capacity, the signing formalities not being met, or undue influence. Even a will that does not meet the formalities can still be upheld, because the court may order that a record or document is fully effective as the will-maker's will. These grounds are separate from a section 60 claim, and whether you could raise them depends on your situation, so it is worth confirming with a lawyer.

Deadlines and protective steps

A wills variation claim must not be heard unless the proceeding is started within 180 days from the date the grant of probate or administration is issued in British Columbia. A copy of the initiating pleading must be served on the executor no later than 30 days after that 180-day period expires, unless the court extends the time for service.

Additional service rules apply in some cases. If the will-maker has minor children, or a spouse or child is mentally incapable, the Public Guardian and Trustee must also be served or the claim will not be heard.

Within 10 days after the initiating pleading is issued, a claimant may register a certificate of pending litigation against land affected by the claim. Separately, a personal representative must not distribute the estate within 210 days after the grant is issued unless the court orders otherwise, which protects the 180-day window. That hold can be lifted if all beneficiaries and all persons who may bring a wills variation claim consent.

What to do next

• Gather proof of how long you lived together and that the relationship was marriage-like, such as shared leases, bills, bank records and messages.
• Note whether the relationship ended, or whether you and your partner separated and reconciled, before the death.
• Find out whether a grant has been issued and, if so, the date. The Court Services Online probate search lets you look up cases by the deceased's name.
• Diarize the 180-day deadline from the grant date as soon as you know it.
• Speak with a BC wills and estates lawyer before agreeing to any distribution of the estate.

Frequently asked questions