Wills Variation Claims (16:VII): Difference between revisions
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::(a) they were married to each other, or | ::(a) they were married to each other, or | ||
::(b) they had lived with each other in a marriage-like relationship for at least 2 years. | ::(b) they had lived with each other in a marriage-like relationship for at least 2 years. | ||
:(2) Two persons cease being spouses of each other for the purposes of this Act if, | :(2) Two persons cease being spouses of each other for the purposes of this Act if, | ||
::(a) in the case of a marriage, an event occurs that causes an interest in family property, as defined in Part 5 [Property Division] of the Family Law Act, to arise, or | ::(a) in the case of a marriage, an event occurs that causes an interest in family property, as defined in Part 5 [''Property Division''] of the ''Family Law Act'', to arise, or | ||
::(b) in the case of a marriage-like relationship, one or both persons terminate the relationship. | ::(b) in the case of a marriage-like relationship, one or both persons terminate the relationship. | ||
:(2.1) For the purposes of this Act, spouses are not considered to have separated if, within one year after separation, | :(2.1) For the purposes of this Act, spouses are not considered to have separated if, within one year after separation, | ||
::(a) they begin to live together again and the primary purpose for doing so is to reconcile, and | ::(a) they begin to live together again and the primary purpose for doing so is to reconcile, and | ||
::(b) they continue to live together for one or more periods, totalling at least 90 days. | ::(b) they continue to live together for one or more periods, totalling at least 90 days. | ||
:(3) A relevant time for the purposes of subsection (1) is the date of death of one of the persons unless this Act specifies another time as the relevant time. | :(3) A relevant time for the purposes of subsection (1) is the date of death of one of the persons unless this Act specifies another time as the relevant time. | ||
'''NOTE:''' See ''Gosbjorn v Hadley'', 2008 BCSC 219 for a list of factors used by the courts to determine if there is a marriage-like relationship. More recently, see the discussion in ''Connor Estate'', 2017 BCSC 978. | '''NOTE:''' | ||
::See [https://canlii.ca/t/1w3gw ''Gosbjorn v Hadley''], 2008 BCSC 219 for a list of factors used by the courts to determine if there is a marriage-like relationship. More recently, see the discussion in [https://canlii.ca/t/h496w ''Connor Estate''], 2017 BCSC 978. | |||
::In ''Boughton v Widner Estate'', 2021 BCSC 325, the deceased had both a legal wife as well as a common law partner at the time of his death. The court confirmed that it is possible to have two spouses who concurrently meet the definition of a spouse under ''WESA'' section 2. The deceased’s estate was split equally between the two spouses. | ::In [https://canlii.ca/t/jdgmq ''Boughton v Widner Estate''], 2021 BCSC 325, the deceased had both a legal wife as well as a common law partner at the time of his death. The court confirmed that it is possible to have two spouses who concurrently meet the definition of a spouse under ''WESA'' section 2. The deceased’s estate was split equally between the two spouses. | ||
::In ''BH v JH'', 2015 BCSC 1551, the BC Supreme Court varied the husband’s will so that the wife, who was separated from but who had not divorced the husband, was entitled to part of the husband’s estate. This significantly deviated from what the wife would have received if they had divorced immediately before the husband’s death. | ::In [https://canlii.ca/t/gkx87 ''BH v JH''], 2015 BCSC 1551, the BC Supreme Court varied the husband’s will so that the wife, who was separated from but who had not divorced the husband, was entitled to part of the husband’s estate. This significantly deviated from what the wife would have received if they had divorced immediately before the husband’s death. | ||
== C. Exclusion of Potential Beneficiaries == | == C. Exclusion of Potential Beneficiaries == | ||
A will-maker who wishes to exclude a spouse or child should state precisely why the person is being “disinherited,” or why they are less than “adequately” provided for. | |||
As per section 60 of ''WESA'', the court is not bound by the will-maker’s decision and reasons but may consider them. Therefore, the will-maker is not assured of success in their attempt to exclude or less than adequately provide for a spouse or child. For more detail, see above: | '''NOTE:''' | ||
::LSLAP’s policy is not to draft a will where the will-maker wishes to exclude a spouse or child, or unevenly divide the assets between children. Such clients should be referred to a private lawyer unless LSLAP’s supervising lawyer gives approval. | |||
::As per section 60 of ''WESA'', the court is not bound by the will-maker’s decision and reasons but may consider them. Therefore, the will-maker is not assured of success in their attempt to exclude or less than adequately provide for a spouse or child. For more detail, see above: [[Wills_Variation_Claims_(16:VII)|Section VII.A: Application Under the Act]]. | |||
The chances of the will-maker’s will being upheld will be greater if the will-maker provides '''reasonable and rational reasons for the exclusion'''. For example, where the will-maker has already given the person substantial benefits during their lifetime, where the reason is based upon the person’s character, or on the relationship between the will-maker and the potential claimant, the court will be more likely to uphold the will-maker’s wishes. | ::The chances of the will-maker’s will being upheld will be greater if the will-maker provides '''reasonable and rational reasons for the exclusion'''. For example, where the will-maker has already given the person substantial benefits during their lifetime, where the reason is based upon the person’s character, or on the relationship between the will-maker and the potential claimant, the court will be more likely to uphold the will-maker’s wishes. | ||
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