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.
Spouses
Section 60 of the WESA is intended to protect children and spouses from the perils of being improperly disinherited by a Last Will and Testament (“LW&T”).
Section 60 of the WESA provides as follows:
Despite any law or enactment to the contrary, if a will-maker dies leaving a will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the will-maker’s spouse or children, the court may, in a proceeding by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the will-maker’s estate for the spouse or children.
So if the LW&T does not make adequate provision for the proper maintenance and support of the spouse or children an application can be made to the Supreme Court of British Columbia to have the LW&T varied.
If you are not married to the Will – Maker, which at would automatically make you a spouse, the first question that arises is whether you are a common law spouse.
Are you a Common Law Spouse?
For the purposes of s. 60 of the WESA you would be a common law spouse after two years of living in a spousal relationship. A useful test for determining whether a spousal relationship exists can be found in Mr. Justice Myers recent Supreme Court of British Columbia decision of Mother 1 v. Solus Trust Company, 2019 BCSC 200 with the relevant paragraphs being 132 – 142.
The Courts will look to factors such as a mutual intent to be a marriage like relationship, cohabitation, financial interdependence, lifestyle, existence of a sexual relationship, meal sharing, social interactions and the attitude of the community towards the couple.
I do suggest that you look at the Mother 1 case if you are wondering whether you are a spouse for the purposes of the WESA. The link is here: http://canlii.ca/t/hxnc9
The next question that arises is whether you are a spouse at the relevant time / death of the will- maker.
When do you cease to be a married spouse / common law spouse?
Pursuant to section 2(2) of the WESA married persons cease being spouses for the purposes of the right to apply to vary a LW&T if “an event occurs that causes an interest in family property, as defined in Part 5 [Property Division] of the Family Law Act , to arise”. That act is separation / termination of the marriage.
Pursuant to section 2(2) of the WESA common law spouses cease being spouses for the purposes of the right to apply to vary a LW&T if one or both of the spouses terminates the relationship.
If you were a spouse at the time of the death of the Will – Maker and the LW&T does not make adequate provision for you we can help you obtain the remedy you deserve pursuant to section 60 of the WESA. We must discuss the details of your case because there are so many factors that will affect the strength of the claim, from the duration of the relationship to the economic circumstances of the spouses and the assets that they each had at the start of the