- Only a will-maker's spouse or children can bring a wills variation claim under section 60 of WESA.
- A spouse who was separated, or a common-law partner whose relationship ended before the death, generally cannot claim.
- A claim must be started within 180 days of the grant and served within a further 30 days.
When someone dies and their will leaves you little or nothing, you may wonder whether you can ask a court to change it. If you were separated from the person, or you lived together without marrying, the first question is whether the law treats you as a spouse at all.
This article explains how British Columbia's Wills, Estates and Succession Act (WESA) decides who counts as a spouse for a wills variation claim, what exceptions apply, and what a qualifying spouse should know about how courts approach the claim and the deadlines.
This article covers the law of British Columbia.
Who can bring a wills variation claim
If a will, in the court's opinion, does not 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 to be made out of the estate. Only a spouse or child can bring this claim. The section names no other relatives, beneficiaries or interested persons.
The remedy is written around a will-maker who dies leaving a will, so on its face it is a remedy against a will, not against a death without a will.
Who counts as a spouse
Two people are spouses under WESA if they were married to each other, or if they had lived together in a marriage-like relationship for at least 2 years. Spousal status is generally judged as of the date of death.
The exceptions below can take a person out of that definition even if they once met it.
Exceptions: separation, ended relationships and reconciliation
| Situation | Effect on spouse status |
|---|---|
| Unmarried partners whose relationship ended before the death | No longer a spouse who can claim, because a marriage-like relationship stops counting once one or both people end it |
| Married spouses who separated | 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 |
| Spouses who reconciled | Not treated as separated if, within one year, they resumed living together mainly to reconcile, for one or more periods totalling at least 90 days |
Whether a particular relationship ended, or whether a reconciliation met the test, depends on the facts. A lawyer can help you assess your own situation.
What a qualifying spouse should know
The Supreme Court of Canada has said the standard of adequate, just and equitable is measured by two norms: legal obligations, meaning what the law would have required of the will-maker during life, and moral obligations, meaning society's reasonable expectations of what a judicious person would do. Where priorities must be set, claims based on legal obligations generally take precedence over purely moral claims.
The court may refuse an order to a person whose character or conduct, in its opinion, disentitles them to relief, and it may attach conditions to an order. If the court varies a will, it can order a lump sum, periodic or other payments, a transfer of property, or a trust.
Deadlines and what to do next
A wills variation claim must not be heard unless it 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. A personal representative must not distribute the estate within 210 days after the grant is issued unless the court orders otherwise, although distribution within that time is allowed if all beneficiaries and all persons who may bring a claim consent.
- Write down the dates of any marriage, move-in, separation or reconciliation.
- Gather any separation or family property documents.
- Find out when the grant was issued and count the 180 days.
- Do not consent to early distribution without advice.
- Speak with a lawyer soon, because the deadlines are strict.
Frequently asked questions
Can my common-law partner's former partner claim?
A former common-law partner whose relationship ended before the death is not a spouse who can claim. Whether the relationship actually ended is a question of fact.
I was married but separated, and then we moved back in together, mainly to try to reconcile. Can I still claim?
Married people stop being spouses for WESA purposes when an event such as separation gives rise to an interest in family property under the Family Law Act. The reconciliation rule can change this if you resumed living together for at least 90 days within one year.
How long do I have to start a claim?
You must start the proceeding within 180 days from the date the grant is issued in British Columbia. Service on the executor is due within a further 30 days, unless the court extends the time for service.
Does a wills variation claim apply if there is no will?
The wills variation provisions are written around a will-maker who dies leaving a will, so on their face they are a remedy against a will rather than a death without one. A lawyer can confirm how this applies to your situation.
Sources
- Wills, Estates and Succession Act, SBC 2009, c 13, s 60 (BC Laws) — bclaws.gov.bc.ca
- Tataryn v. Tataryn Estate, [1994] 2 SCR 807, 1994 CanLII 51 (SCC) — canlii.org
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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