Will Not Updated Post-Separation, But Former Spouse Still Inherits Ex’s Estate

When married or common-law partners cease to be spouses, s. 56(2) of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 (“WESA”) automatically revokes testamentary gifts to one’s former spouse. The effect of s. 56(2) is that an ex-spouse is disinherited. But in some situations, that is not what is intended. In Jacobson Estate (Re), 2020 BCSC 1280, a BC woman wanted her ex-partner of 30 years to inherit from her estate, despite their separation. She was not aware that s. 56(2) of WESA revoked the parts of her Will that left property to her ex-partner, so she did not update the Will she had made prior to their separation. Can BC courts assist an accidentally disinherited ex-spouse? The answer is yes – where the deceased’s intentions are clear, BC courts can rely on the broad “curative power” of WESA s. 58 to preserve those intentions.  

Formal steps to renew an estate plan post-separation

Ex-spouses can still inherit from one another. To address the operation of s. 56(2) and ensure that gifts to an ex-spouse are effective after separation, options include preparing a new Will or executing a codicil to an existing Will. Unfortunately, in the Jacobson Estate litigation matter, Helga did not take any formal steps to affirm her testamentary intentions after she separated from Naida in 2017. Helga died in 2019, leaving no children of her own. Helga’s 2014 Will provided Naida was to receive Helga’s personal property and the residue of her estate. Helga consulted with a lawyer on several occasions in the years between the 2017 separation and her 2019 death for several reasons, including preparing a separation agreement, executing a new power of attorney (“POA”) and representation agreement, and discussing the need for a new Will. Neither Helga nor her lawyer was aware of WESA s. 56(2). Helga did not update her Will or execute a codicil before her death.

Deceased intended for her ex-partner to inherit, despite separation

While Helga did not take formal steps to affirm her estate plan after she and Naida’s relationship ended, she did unequivocally manifest her intentions repeatedly in statements to her lawyer and her POA. Helga consistently advised her lawyer that she wanted Naida to inherit, notwithstanding the end of their 30-year marriage-like relationship. She specifically instructed her lawyer to delete a clause from the separation agreement that prohibited the parties from seeking a share of the other’s estate. Helga also repeatedly told her POA that she wanted her property to go to Naida. The POA responded by asking Helga if she was making a Will to that effect, and Helga replied that it was unnecessary, as Naida was the beneficiary under her existing Will. Helga remained adamant that Naida was to be her beneficiary and did not waver from that at any point prior to her death.

Using WESA s. 58 to preserve the deceased’s clear intentions

After Helga’s death, the executor of her Will and trustee of her estate sought an order under s. 58(2)(b) of the WESA, reviving the clauses of the Will that gave property to Naida. The purpose of WESA s. 58 is to ensure that obvious testamentary intentions are not thwarted “for no good reason” by a failure to comply with statutory requirements. As our Vancouver estate litigators have previously discussed, s. 58 confers a broad discretion on the court to order that a “record or document or writing or marking on a will or document” be fully effective, despite non-compliance with the statutory requirements.  Although s. 58 cannot be used to uphold a will that is substantively invalid, it permits the court to cure issues of formal invalidity in certain cases.

Applying s. 58 of WESA in Jacobson Estate

The applicable test under s. 58 of WESA has two main parts: (1) whether the record, document, or writing is “authentic”; and (2) whether the record, document or writing represents the deliberate or fixed and final intention of the deceased person. In Jacobson Estate there was no disputing that Helga’s 2014 Will was authentic. There was no other document said to be testamentary. Her 2014 Will was patently intended as a formal record of her testamentary intention at the time of its making. It complied with the WESA requirements, but on its face, included clauses that were rendered ineffective by operation of s. 56(2). The evidence was clear that Helga was unaware of the s. 56(2) revocation. The purpose of s. 58 is to avoid defeating a will-maker’s genuine intentions due to some technical defect. In the Court’s view, declaring the terms set out in Helga’s Will, in their entirety, effective as her Will as at the time of her death accomplished exactly that. In fact, Justice Tucker noted that short of actually executing an effective document, it was hard to imagine how Helga’s testamentary intentions could be established more clearly than on the evidence before the Court.

Bottom line on post-separation testamentary intention

If an ex-partner is to inherit from their former spouse’s estate following separation, the best course of action is to execute a new Will or a codicil affirming testamentary intentions. If such formal steps are not taken, an ex-spouse accidentally disinherited by operation of s. 56(2) may still have recourse under s. 58. BC Courts may apply WESA s. 58 to prevent obvious testamentary intentions being thwarted “for no good reason” – but as Jacobson Estate shows, evidence of the deceased spouse’s intentions must be clear and consistent.

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