Wills, Estates and Succession Law Act: Variation of Wills

How will British Columbia’s new Wills, Estates and Succession Law Act affect the Wills Variation Act?

The British Columbia Law Institute had recommended some radical changes to British Columbia’s Wills Variation Act as part of its recommendations on reforming succession law, including limiting the rights of adult children to apply to vary their parents’ wills.

But the Wills, Estates and Succession Law Act, as passed by the British Columbia Legislative Assembly, kept most of the current law intact. Adult children will still be able to apply.

When the Wills, Estates and Succession Law Act is brought into force, the Wills Variation Act will be repealed. But most of the provisions of the Wills Variation Act can be found in Part 4, Division 6 of the Wills, Estates and Succession Law Act.

There will be some changes to the law. Currently a separated spouse may apply to vary his or her deceased spouse’s will, provided that the spouses have not divorced. The definition of spouse under the new legislation will exclude married spouses in some circumstances, including spouses who have been separated for at least two years, if one or both of them had an intention to live separate and apart permanently. Specifically, section 2(2) of the Wills, Estates and Succession Law Act provides:

(2) Two persons cease being spouses of each other for the purposes of this Act
if,
(a) in the case of a marriage,
(i) they live separate and apart for at least 2 years with one or both of them having the intention, formed before or during that time, to live separate and apart permanently, or
(ii) an event occurs that causes an interest in family assets, as defined in Part 5
of the Family Relations Act, to arise, or
(b) in the case of a marriage-like relationship, one or both persons terminate the
relationship.

There is also a new time limit in the new Act. Currently, the Wills Variation Act provides that a lawsuit must be filed within six months of the date of probate or resealing of the will in British Columbia. The new Act will change the limitation to 180 days (I have no idea why).

There is also a new provision (section 61(1)(b)) that the writ of summons starting the lawsuit must be served on the executor “no later than 30 days after the expiry of the 180 day” limitation period. The court may extend the period for serving the writ. Under the Wills Variation Act, the plaintiff has a year from the date the writ of summons is filed to serve it on the executor and the other defendants before the writ expired. An executor might distribute the estate without realizing that someone had sued under the Wills Variation Act. (A prudent executor will check the Court Services Online to make sure no suits have been filed before distributing an estate in British Columbia.)

Until the Wills, Estates and Succession Law Act is brought into effect, the Wills Variation Act will continue to govern wills variation claims in British Columbia.