Pre-Nuptial and Separation Agreements

If you have been disinherited then you may be able to make a wills variation claim to vary the Last Will and Testament pursuant to the Wills, Estates and Succession Act  (“WESA”), formerly the Wills Variation Act if you are within a set of persons entitled to challenge the Will. Those rights may be affected by agreements.

Separation Agreements

Where the variation of a Last Will and Testament (“LW&T”) is available to spouses and children only, and for spouses there cannot have been an event that indicates that the relationship is over it is hard to imagine a situation where a spouse who has signed a separation agreement precluding them from making a variation claim would have success in bringing a variation claim even though they would have the standing to do so.

Pre- nuptial Agreements

Since it is against public policy to allow parties to contract out of the court’s discretionary jurisdiction with respect to legislation that is intended to have a socially remedial effect, a pre – nuptial agreement does not prevent a spouse from bringing a claim to vary a LW&T.

The Court of Appeal of British Columbia has made it clear that a pre-nuptial agreement is a relevant factor in considering whether the moral obligation of a will – maker towards their spouse has been met. See Howard v. Howard Estate, 1997 CanLII 3553 .  However, in the more recent decision of Ward v. Ward Estate (after a family law case called Hartshorne) 2006 BCSC 448 the Court found that a marriage agreement must operate fairly at the time of distribution of the estate to be enforceable. In that instance the Court found that it had an obligation to address fairness at the time of distribution of the estate.