Wills and Estates Issues in Family Law

From Clicklaw Wikibooks

Wills and estates refers to the area of law that deals with the drafting and interpretation of wills, how a deceased person's estateIn law, all of the personal property and real property that a person owns or in which they have an interest, usually in connection with the prospect or event of the person's death. is distributed when there is a valid will, how a deceased person's estate is distributed when there isn't a valid will, and how certain relatives can challenge a deceased person's will. In family law, issues concerning a person's will most often arise when a couple have separated or are getting a divorceThe legal termination of a valid marriage by an order of a judge; the ending of a marital relationship and the conjugal obligations of each spouse to the other. See "conjugal rights," "marriage," and "marriage, validity of.".

Making, changing, revoking, and enforcing wills are governed by the provincial Wills Estates and Succession Act (WESA). Section 37 sets out the basic requirements for a valid will:

37 (1) To be valid, a will must be
(a) in writing,
(b) signed at its end by the will-maker, or the signature at the end must be acknowledged by the will-maker as his or hers, in the presence of 2 or more witnesses present at the same time, and
(c) signed by 2 or more witnesses in the presence of the will-maker.

British Columbia courts have said that people are presumed to have a moral duty to provide for members of their immediate family. Under WESA, spouses and children who have not been provided for in a will are able to challenge the will and ask the court that they be included and receive a share, or a bigger share, of the dead person's estate. This is often referred to as a variation of a will.

A person who dies without leaving a will is said to die intestateDying without a will. In such circumstances, the distribution of the dead person’s estate is governed by the ''Wills, Estates and Succession Act''. See also "estate," "inheritance" and "will.". If a person dies intestate, their assets are dealt with according to the terms of WESA. This law requires a person's estate to be distributed in a certain way, with the surviving spouseUnder the ''Divorce Act'', either of two people who are married to one another, whether of the same or opposite genders. Under the ''Family Law Act'', married spouses, unmarried parties who have lived together in a marriage-like relationship for at least two years, and, for all purposes of the act other than the division of property or debt, unmarried parties who have lived together for less than two years but have had a child together. See "marriage" and "marriage-like relationship." receiving a first, fixed share of the estate, which is adjusted if the surviving spouse is not the other parentIn family law, the natural or adoptive father or mother of a child; may also include stepparents, depending on the circumstances and the applicable legislation; may include the donors of eggs or sperm and surrogate mothers, depending on the circumstances and the terms of any assisted reproduction agreement. See "adoptive parent," "natural parent" and "stepparent." of the deceased's surviving children, and the remainder being split with any surviving children (sections 20 to 23 of WESA).

If a person dies without a will, only people who qualify as the person's spouse and children can benefit from the provisions of WESA. If the dead person had been married or in a marriage-like relationshipIn family law, the quality of an unmarried couple's relationship that demonstrates their commitment to each other, their perception of themselves as a couple and their willingness to sacrifice individual advantages for the advantage of themselves as a couple; a legal requirement for a couple to be considered spouses without marrying. See "cohabitation," "marriage" and "spouse." which either partyIn law, a person named as an applicant, claimant, respondent or third party in a court proceeding; someone asserting a claim in a court proceeding or against whom a claim has been brought. See "action" and "litigant." had terminated prior to the first person’s death, the former spouse can't make a claimThe assertion of a legal right to an order or to a thing; the remedy or relief sought by a party to a court proceeding. under the actIntentionally doing a thing; a law passed by a government, also called "legislation" or a "statute." See "regulations.".

If a person dies with a will which gives a benefit to a spouse, but either party had terminated the relationship prior to the will-maker's death, the benefit is cancelled.

Resources and links



This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Bob Mostar and Mark Norton, June 8, 2017.
Creativecommonssmall.png JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.
Personal tools