The Wills Variation Act: Who May Apply?

[Effective March 31, 2014, the Wills Variation Act was replaced by Division 6 of Part 4 of the Wills, Estates and Succession Act, which will apply to all deaths on or after that date, and under which separation after a marriage or a termination of a common-law relationship affects the right of a former spouse to apply. This changes the law and the article below is no longer current in respect of separated spouses.]


The Wills Variation Act, R.S.B.C. 1996, c. 490, says that the court may vary a Will in favor of a “spouse or children.” (See my September 4 post for an introduction to the British Columbia Wills Variation Act here.)

A spouse includes a legally married spouse, and in some circumstances a common law spouse. Section 1 says that a spouse “means a person who
(a) is married to another person, or
(b) is living and cohabiting with another person in a marriage-like relationship, including a marriage-like relationship between persons of the same gender, and has lived and cohabited in that relationship for a period of at least 2 years.”

The Wills Variation Act does not allow claims on behalf of a divorced spouse, but a separated married spouse may apply. In Wagner v. Wagner Estate (1991), 62 B.C.L.R. (2d) 1, a majority of the British Columbia Court of Appeal held that the fact that the wife and husband had signed a final separation agreement did not bar the wife from making a claim under the Wills Variation Act after her husband’s death.

The use of the word “is” in the definition of spouse implies that a common law spouse must have been living with the deceased in a marriage like relationship at the time of the deceased’s death. The wording is not as clear as the definition of “common law spouse” in the Estate Administration Act, R.S.B.C. 1996, c. 122, where a person must have cohabited in a marriage-like relationship “for a period of at least 2 years immediately before the other person’s death.” The wording used in the Estate Administration Act has been held to preclude a claim by a person who had separated from the deceased before his death in Einfeld v. Bellrichard, 2001 BCSC 92. I am not aware of any decisions considering whether the wording of the current definition of spouse in the Wills Variation Act precludes a claim by a separated common law spouse.

To determine whether the Plaintiff lived in a marriage-like relationship with the deceased for the purpose of the Wills Variation Act definition of spouse, Mr. Justice R.R. Holmes in Janus v. Lachocki Estate, 2001 BCSC 1702, adopted the analysis used by Lambert J.A. for the Court of Appeal, in Gostlin v. Kergin, [1986] 5 W.W.R.1, 1 R.F.L. (3d) 448, 3 B.C.L.R. (2d) 264 in respect of support obligations of a common law spouse under the Family Relations Act, R.S.B.C. 1996, c. 128:

So I would ask whether the unmarried couple's relationship was like the relationship of the married couple in that the unmarried couple have shown that they have voluntarily embraced the permanent support obligations of s. 57. If each partner had been asked, at any time during the relevant period of more than two years, whether, if their partner were to be suddenly disabled for life, would they consider themselves committed to life-long financial and moral support of that partner, and the answer of both of them would have been "Yes", then they are living together as husband and wife. If the answer would have been "No", then they may be living together, but not as husband and wife.
Of course, in the particular circumstances of any case, the answer to that question may prove elusive. If that is so, then other, more objective indicators may show the way. Did the couple refer to themselves, when talking to their friends, as husband and wife, or as spouses, or in some equivalent way that recognized a long-term commitment? Did they share the legal rights to their living accommodation? Did they share their property? Did they share their finances and their bank accounts? Did they share their vacations? In short, did they share their lives? And, perhaps most important of all, did one of them surrender financial independence and become economically dependent on the other, in accordance with a mutual arrangement?
All those questions, and no doubt others, may properly be considered as tending to show whether a couple who lived together for more than two years have done so with the permanent mutual support commitment that, in the relevant sense of the Family Relations legislation, constitutes living together as husband and wife.

Because both a common law spouse and a separated married spouse can apply for a share of the deceased estate under the Wills Variation Act, two spouses may make competing claims under the Act.

“Child” and “Children” are not defined in the Wills Variation Act, but includes a natural child, whether the child is born inside or outside of marriage, and an adopted child.

Neither a natural child of the deceased who has been adopted out to other parents, nor a stepchild has any claim under the Wills Variation Act. Even a minor stepchild who was dependant on the deceased cannot apply for a share of the estate under the Wills Variation Act. The British Columbia Supreme Court held that the exclusion of step children from the Wills Variation Act does not offend the equality provisions of the Canadian Charter of Rights and Freedoms in McCrea v. Barrett, 2004 BCSC 208.

I suggest that where the deceased had been in the position of a parent to the stepchild, the law is incoherent. During the deceased’s lifetime, a minor or other dependant stepchild may be entitled to support from a stepparent under the Family Relations Act,but has no claim to a share of the stepparent’s estate under the Wills Variation Act, even where the stepchild can show financial need.

[Since I wrote this post, I have posted the following other articles on the Wills Variation Act:
"The Wills Variation Act: What is Adequate, Just and Equitable? here;
"Wills Variation Act: A Summary of the Principles" here;
"Time Limits for Bringing a Wills Variation Act Claim" here.]