Can a Separated Spouse Claim Against a Will in British Columbia?

A spouse or partner has died, and you had already separated. The will leaves you little or nothing, and you wonder whether you can still ask a court to change it. The answer turns on a technical question: were you legally a "spouse" on the day of death?

This article explains how British Columbia's Wills, Estates and Succession Act (WESA) treats separated married spouses and former common-law partners, what the reconciliation exception does, and the deadlines that apply. Every situation is different, so use this as a map and not as a verdict.

This article covers the law of British Columbia.

Who can bring a wills variation claim

Under section 60 of WESA, if a will 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 be made out of the estate. Only a spouse or a child can bring this kind of claim. The section names no other relatives, beneficiaries or interested persons.

The remedy is written around a will-maker who dies leaving a will. On its face, it is a remedy against a will and not against a death without a will.

So the first question for a separated person is simple: do you still count as a spouse under WESA?

How WESA defines a spouse

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. Spousal status is generally judged as of the date of death.

The Act then carves out exceptions for people who have separated. Which exception applies depends on whether you were married or unmarried.

Separated married spouses and former common-law partners

Being married on paper is therefore not always enough. A married person who had separated before the death may no longer be a spouse for WESA purposes. Whether a particular separation amounts to an event of this kind can depend on the facts, so it is worth confirming with a lawyer.

Separately, being a child of the will-maker is a different route to a claim, because children can claim as well. Adopted children have a special rule: an adopted child is not entitled to the estate of a pre-adoption parent except through that parent's will.

The 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.

This can matter when a couple separated, tried again, and the will-maker died afterwards. Points that tend to be examined include:

• When the separation happened and when you resumed living together.
• Whether the main purpose of living together again was to reconcile.
• Whether the periods together added up to at least 90 days within the one-year window.
• What records show it, such as shared addresses, messages or statements from people who knew you.

Because the test has specific parts, small differences in dates can change the result. Gather the dates early.

Deadlines that apply to any claim

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

Do not assume the 180 days can be extended. The Act speaks of extending service, and whether the filing period itself can be extended is a question for a lawyer.

Other service rules may apply. If the will-maker has minor children, or a spouse or child is mentally incapable, the pleading must also be served on the Public Guardian and Trustee or the claim will not be heard. Claims about a Nisg̱a'a citizen or treaty first nation member have their own service requirement.

The estate generally cannot be distributed within 210 days after the grant is issued unless the court orders otherwise, or all beneficiaries and all persons who may bring a wills variation proceeding consent.

What to do next

If you were separated from the will-maker, start by pinning down the facts and the calendar.

• Write down the date you separated and any date you moved back in together.
• Note whether you were married or in a marriage-like relationship, and for how long.
• Find out whether a grant of probate or administration has been issued in British Columbia, and when. You can search probate cases by the deceased's name in Court Services Online.
• Keep a copy of the will and any documents about the estate.
• Count 180 days from the grant date and speak to a lawyer well before it ends.

A lawyer can tell you whether you qualify as a spouse, whether other options exist outside a wills variation claim, and how the deadlines apply to your dates.

Frequently asked questions