The British Columbia Wills, Estates and Succession Act (the “WESA”) allows the spouse of someone who dies without a will to retain the deceased’s interest in the spousal home as part of the spouse’s share of the estate. This will apply when the residence is in British Columbia.

In British Columbia, when someone dies without a will, referred to as an intestacy, then the provisions of the WESA sets out how the estate is to be divided. If the deceased’s left a spouse, but no descendants, then all the estate goes to the spouse, but if there the deceased had descendants (children, grandchildren and/or great-grandchildren etc.), then the estate is allocated between the spouse, on the one hand, and the descendants on the other. The share of the spouse depends in part on whether all of the descendants are descendants of both the deceased and the spouse, or whether the deceased had descendants from a previous relationship. If all the descendants are shared, then the spouse receives the first $300,000 of the estate, but if the deceased also had descendants who are not descendants of the spouse, then the spouse receives the first $150,000 out of the estate. The spouse also receives one-half of the rest of the estate.

The law used to be that the spouse also received a life interest in the estate in the spousal home, which allowed the spouse to live in the home for the rest of the spouse’s life. But this changed in 2014 when the WESA came into effect.

Now, the spouse can choose to retain the house as part of their share, the effect being that the spouse receives less funds from the estate. This is straightforward when the value of the estate is significantly greater than the value of the deceased’s interest in the home. For example, if the home, owned solely by the deceased is worth $700,000, and the total value after debts and expenses of the estate is $2 million, then there are sufficient funds to allocate the home to the spouse. In this example, let’s say that the deceased and the spouse have two children together, and the deceased did not have any children from another relationship. The spouse would be entitled to $1,150,000 ($300,000 plus half of $1,700,000) of the estate. The spouse could then elect to receive the home plus an additional $450,000.

But what if the value of the estate is not large enough for the spouse to receive the spousal home without infringing on the descendants’ share of the estate? This is what happened in a recent case, Re Boisvert Estate, 2026 BCSC 195, the only reported decision of which I am aware (at the time of writing this post).

Kathryn Anne Boisvert died May 14, 2022. She did not have a will. Ralph Amies was her common-law spouse and lived with her in a home owned by her for 25 years. She had two children from a previous relationship. The home was worth about $600,000 and she had no other significant assets. On the basis that the estate was worth $600,000, he was entitled to $375,000 (the first $150,000 in this case plus $225,000 representing half of the remaining $450,000). Ms. Boisvert’s two children were each entitled to $112,500 (half of $225,000).

If he received the home, then the children would not receive their share. On the other hand, in the circumstances of this case, Mr. Armies had limited means to buy out the children’s interest. He was 62 years old, with an income of about $20,000 annually, and about $100,000 in a Registered Retirement Savings Plan. The home was his longtime residence, and he contributed to the home and the household expenses. It would have been, the court found, a hardship to him to require him to buy out the children’s interest or to leave immediately.

 

The WESA does have provisions for this type of circumstance, providing a judge with a broad discretion to balance the interest of a surviving spouse and the descendants. Section 33 reads as follows:

33   (1) On application by a surviving spouse, the court may make an order under subsection (2) if

(a)the surviving spouse is ordinarily resident in the spousal home at the time of the deceased person's death,

(b)assets in the estate are not sufficient to satisfy the interests of all descendants entitled to share in the intestate estate or that part of the estate that is to be treated as an intestate estate without disposing of the spousal home,

(c)the court is satisfied that purchasing the spousal home under section 31 would impose a significant financial hardship on the surviving spouse,

(d)the court is satisfied that, in all the circumstances, a greater prejudice would be imposed on the surviving spouse by being unable to continue to reside in the spousal home than would be imposed on the descendants entitled to share in the intestate estate or that part of the estate that is to be treated as an intestate estate by having to wait an indeterminate period of time to receive all or part of their share of the intestate estate, and

(e)either

(i)the surviving spouse has resided in the spousal home for a sufficient period of time to have established a connection to the spousal home, or

(ii)the surviving spouse has a sufficient connection with the community or members of the community in the vicinity of the spousal home to warrant an order under subsection (2).

(2) The court may, subject to any terms or conditions the court considers appropriate, make an order doing one or more of the following:

(a)vesting the same interest in the spousal home in the surviving spouse that the deceased person had;

(b)specifying the amount of money the surviving spouse must pay to the descendants towards satisfaction of their interest in the estate;

(c)converting the remaining unpaid interest of the descendants in the intestate estate into a registrable charge against the title to the surviving spouse's interest in the spousal home;

(d)determining an interest rate, as that term is defined in section 7 [interest rate] of the Court Order Interest Act, or at any other rate the court considers appropriate, for the amount the descendants are entitled to under paragraph (c) of this subsection;

(e)determining the value of the registrable charge referred to in paragraph (c) to include the principal amount owing to the descendants entitled to share in the intestate estate or that part of the estate that is to be treated as an intestate estate and the expected value of the future interest that will be earned under paragraph (d).

Madam Justice Hardwick heard the application and balanced the competing interests by allowing Mr. Amies to retain the home, but subject to a charge on the title in the amount of $225,000 for the benefit of the Ms. Boisvert’s children. She reasoned:

[54]         Section 33(1)(d) requires me to assess whether a greater prejudice would be imposed on Mr. Amies by reason of not being able to reside in the spousal home, than would be imposed on the Descendants by reason of having to wait to receive most of their share of the Estate.

[55]         I find that Mr. Amies would be significantly prejudiced by a decision requiring him to quickly vacate the Smithers Home. He has resided in the Smithers Home for almost 30 years. It sits on a large lot. While there are homes that are available in Smithers that Mr. Amies could purchase with his share of the Estate, I accept that none of them are as desirable to live in as the Smithers Home as they are generally smaller and less private.

[56]         The Descendants will be prejudiced by Mr. Amies remaining in the Smithers Home but less so. Their only significant inheritance is their share of the Smithers Home. The longer that Mr. Amies stays in the Smithers Home, the longer they must wait for their inheritance. I am mindful that the Descendants’ inheritance has already been delayed through this litigation and that Mr. Amies has lived in the Smithers Home for almost four years following Ms. Boisvert’s death. As I will outline below however, the Descendents do have options to dispose of their charge so they can receive a portion of their inheritance sooner.

However, Madam Justice Hardwick limited the period Mr. Amies could reside in the home to 24 more months, reflecting the fact that he had already been in the home for over three years since Ms. Boisvert's death.