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Many people do not know that BC’s laws are the most sympathetic laws in all of Canada to people who have been unfairly treated in a family members Will. Many provinces allow a testator to exercise almost complete discretion over how their estate is divided, even if it leaves their loved ones penniless. BC’ highest court has said that a person’s Will is their last opportunity to do right by their family members, and BC courts regularly vary unfair Wills.
BC’s Wills, Estates and Succession Act, known as WESA, provides that if a will-maker dies leaving a Will that does not make adequate provision for the proper maintenance and support of the will-maker’s spouse or children, then the court may change the Will to make provision for the spouse or children that it thinks adequate and fair in the circumstances. This can mean the significant rewriting of a will that is not possible in other provinces.
The obvious issue is, if a spouse or a child can apply to vary a will, who is a spouse and who is a child? Under BC’s law, a spouse is one of two people who are either married to one another, or have lived in a marriage like relationship for at least two years. Of course, this includes same sex couples. However, people cease being spouses when they separate. This means separated spouses cannot challenge their former partner’s will. Separation occurs when one spouse communicates they intend to separate permanently, or they taken action that demonstrates they intend to separate permanently. This means that people may be legally separated even if they continue to live under the same roof. Importantly, spouses are not considered to have separated if, within one year of their separation they begin to live together again, the primary purpose for doing so is to reconcile, and they continue to live together for one or more periods, totalling at least 90 days.
On the other hand, a child, including an adult, and even a financially independent adult, can challenge their parent’s Will, as well. A child means a natural birth child, or a step-child that has been adopted by the step-parent. Step-children who have not been adopted cannot challenge a Will.
One last important point to note is that if a spouse or child has not filed court documents to challenge the will within 180 days from date the court issues the grant of probate, the right to challenge the will is typically lost. The grant of probate is the formal certificate given by a court that certifies that a will has been proven, validated and registered and which, from that point on, gives the executor the legal authority to execute the will. Again, a will challenge must be filed within 180 of the court granting probate of an unfair will.
If you have a question about this issue, or another legal topic, please contact us for a free consultation. We may be reached at 250-888-0002 or via email at email@example.com – we are Victoria, BC based and serve clients across BC.