Last Minute Amendments to the Wills, Estates and Succession Act

On Monday, March 2, 2014 the Government of British Columbia introduced Bill 14, Justice Statutes Amendment Act, which, if passed and brought into effect, will amend the Wills, Estates and Succession Act. The new Wills, Estates and Succession Act comes into effect on March 31, 2014.

The amendments include changes to the provision setting out when spousal relationships end for the purposes of the legislation. As I wrote before, when one person ceases to be a spouse, this affects his or her rights to inherit under the will of a former spouse, the right to apply to vary the will, and the right to receive a share of the estate if the former spouse dies without a will.

As it stands without the changes in Bill 14, section 2(2) reads:

2(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 property, within the meaning of the Family Law Act to arise, or

(b) in the case of a marriage-like relationship, one or both persons terminate the relationship.

Bill 14 will change the wording as follows:

(2) Two persons cease being spouses of each other for the purposes of this Act if,

(a) in the case of a marriage, an event occurs that causes an interest in family property, as defined in Part 5 [Property Division] of the Family Law Act, to arise, or

(b) in the case of a marriage-like relationship, one or both persons terminate the relationship.

There will also be a new subsection (2.1):

(2.1) For the purposes of this Act, spouses are not considered to have separated if, within one year after separation,

(a) they begin to live together again and the primary purpose for doing so is to reconcile, and

(b) they continue to live together for one or more periods, totalling at least 90 days.

As I pointed out in my previous post, subsection 2(2)(a)(i) didn't really make sense. Under the Family Law Act, a separation will cause an interest in family property to arise, unless there is a reconciliation within one year, in accordance with section 83 of the Family Law Act, which is similar to the proposed new subsection 2(2.1) above. Accordingly, it is difficult to conceive of circumstances under which subsection  2(2)(a)(ii) would apply that is not already covered under subsection 2(2)(a)(ii).