Marriage No Longer Revokes a Will

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The wedding day is a happy and exciting time for newlyweds but if you ask any Vancouver Family Law Lawyer they will tell you that there is some important paper work to attend to when a couple marries.  One document which newlyweds would be wise to turn their minds to is their will.  With the recent March 31, 2014 introduction of the new Wills, Estates and Succession Act (known in legal circles as the “WESA”), the law regarding marriage and wills has changed.

Under the old Wills Act, a marriage revoked any previous wills that a newlywed had made before the marriage date, except where the will-maker expressly stated on the will that it was made in contemplation of that marriage.  As a result, most wills were revoked by a marriage and in the absence of a new will, the estates would pass by the default rules of intestacy.  Intestacy rules set out the guidelines for distributing an estate without a will, and in BC those rules set out a formula to provide for the spouse and children of the deceased person. In the result, the spouse and children of the deceased would receive a share of the estate.

The new WESA changes that rule and now a marriage will not revoke a prior will, even if that will was made years before you even met your spouse.  The estate will be distributed as set out in the will, even though it doesn’t provide anything to your new bride or groom.  If you have a will that predates the marriage, and that will does not provide for your new spouse or resulting children, when you pass away your grieving spouse and children will be compelled to pursue an action against the Executor of your estate, which is the last thing you want for the loved ones you leave behind.

If you are planning to marry, make one of your “to-do” list items an appointment with a lawyer.  A Vancouver Family Law Lawyer will advise what kind of legal implications you are facing, and what kind of agreements or documents can help protect you and your family.

*Nothing in this post constitutes legal advice and is for general informational purposes only.  To establish a solicitor-client relationship with Virginia K. Richards please contact her at Henderson Heinrichs LLP using the information on the Contact Page.

Recent Case from BC Supreme Court

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Shaw v. Shaw, 2014 BCSC 984

On Wednesday, June 4, 2014, the BC Supreme Court website published the Reasons for Judgment on Shaw v. Shaw, 2014 BCSC 984.  The trial judge, Mr. Justice Jenkins, confirmed that parents cannot make claims for retroactive child support where the child in question has ceased to be a “child of the marriage” (meaning that the child has reached the age of majority and is able to move out or provide for themselves).  If your child is getting close to turning (or has recently turned) 19 years old, and you think you may have a claim to retroactive child support, do not wait any longer to obtain legal advice.  Once your child loses their status of “child of the marriage” you may be barred from making a retroactive claim.  A family lawyer can help you determine whether your adult child meets the test for “child of the marriage” and the strength of your claim to retroactive child support.

*Nothing in this post constitutes legal advice and is for general informational purposes only.  To establish a solicitor-client relationship with Virginia K. Richards please contact her at Henderson Heinrichs LLP using the information on the Contact Page.

Wills, Estates and Succession Act: Separation Revokes Your Inheritance From Your Spouse

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*You can see this blog post, among several others by the lawyers at Henderson Heinrichs LLP, over at the Henderson Heinrichs LLP website.*

On March 31, 2014, the long awaited Wills, Estates and Succession Act (known in the legal community as “WESA”) came into force.  It was a long time coming, as the WESA was introduced by the B.C. government in September, 2009 and obtained Royal Assent on October 29, 2009.  Almost five years later, and after undergoing changes to accommodate the new property division regime in the Family Law Act, the WESA is finally here.

The WESA combines the previously separate Estate Administration Act, the Wills Act, and the Wills Variation Act, so that now all provincial legislation governing inheritances is located under one Act.  The WESA contains some provisions which are important to keep in mind in your family law case.

First, the WESA defines spouse in a similar way to the Family Law Act.  Pursuant to s. 2 of the WESA, two persons are spouses for the purpose of the Act if they were both alive immediately prior to the Will-maker’s death and they were married or had lived in a marriage-like relationship for at least 2 years.  Both married and unmarried spouses  cease being spouses when they separate.  That’s right, you don’t have to be divorced to lose your status as a married spouse when applying for relief using the provisions of the WESA!

Second, the WESA provides that a spouse’s entitlement to an inheritance from the other spouse will terminate if the two separate.  S. 56 of the WESA says that if the spouses separated after the Will is made, but before the will-maker dies, when the time comes to distribute the estate any inheritance to the surviving spouse must be distributed instead to the other beneficiaries as if the surviving spouse predeceased the will-maker.

Now, s. 2 of the WESA does allow for the fact that some separations are temporary, and rightly does not revoke spousal status forever based on a temporary separation.  Pursuant to s. 2(2.1), spouses who live together for at least 90 days with the primary purpose being to reconcile, regain their status as spouses.

However, that reconciliation pursuant to s. 2(2.1) does not reinstate those revoked inheritances named in the will to the surviving spouse.  S. 56(3) of the WESA specifically says that a subsequent reconciliation does not reinstate provisions of a will which are revoked because of a separation.

So what does all of this mean?  It means that if you and your spouse experience a separation, and later get back together, you ought to execute a new Will or Wills.  Otherwise, the surviving one of you will receive nothing under the Will-maker’s Will, and will be left with the only option of starting court proceedings against the executor or personal representative in order to obtain a share of the estate.  This can be so even where the temporary separation occurred many years before the death.  Imagine having had a temporary separation 20 years ago, only to find that your spouse’s will, executed 25 years ago, provides nothing for you because of these revocation clauses!

It is always a wise idea, when you are experiencing a temporary or permanent separation from your partner, to seek the advice of a family law lawyer to determine how your rights and entitlements may be affected.

*Nothing in this post constitutes legal advice and is for general informational purposes only.  To establish a solicitor-client relationship with Virginia K. Richards please contact her at Henderson Heinrichs LLP using the information on the Contact Page.