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Can an Ex-Wife Contest a Will in BC?

Separation and divorce can unsettle so many areas of life, including a person’s estate plan. While an ex-wife or ex-husband may be able to contest a will in BC, questions and issues arise such as whether an ex-spouse can inherit under an old will that pre-dates the separation, if an ex-spouse can challenge the existing will of their former spouse to get a share (or greater share) of estate assets, or what happens if one spouse forgets to update their will after the relationship has ended.

If you have questions, our knowledgeable team of family law lawyers and estate litigation lawyers are well-positioned to provide you with valuable insight on will disputes in Canada and inheritance law during a divorce, as well as help devise strategies to get the best results. Contact us today to arrange a free consultation.

In today’s blog post, we will explore how divorce affects a BC will and the legal inheritance rights of former-married spouses.

How Do Wills Work in BC?

How Do Wills Work in BC?

A will is a legal document that leaves instructions about what a person wants done with their estate after they die. A person’s estate is made up of the property and assets they owned at the time of their death, such as bank accounts, personal possessions, real estate, and investments.

According to BC inheritance and estate laws, there are certain legal requirements to make a valid will in British Columbia: to be valid, a will must be (1) in writing; (2) signed at the end by the will-maker; and (3) signed in the presence of two independent witnesses. If a will doesn’t meet those requirements, it may not be enforceable.

Who Can Contest a Will?

British Columbia estate law is clear that only certain people are entitled to bring legal action (known as having “legal standing”). To bring legal action based on improper execution of the will, undue influence, or lack of mental capacity, for example, a person must have an interest in the estate. A person has an interest in the estate as a beneficiary named in the most recent will, as a beneficiary named in a prior will, as an heir who would inherit under the rules of intestacy if the will is deemed invalid, or as a creditor with a financial interest in the estate. The odds of winning contesting a will depend on factors such as jurisdictional laws, the strength of the evidence, and legal arguments.

Wills variation claims are different. Only the surviving spouse or children of a deceased person have legal standing to bring court proceedings to remedy unfairness in a will. This right is provided for in WESA, s. 60. “Spouse” here means a legally married spouse or a common-law spouse. “Child” means any biological child or adopted child of the deceased. If the will disinherits a spouse or child of the deceased or makes inadequate provision, the court can vary the will in the claimant’s favour to ensure adequate provision from the estate assets. In this instance, it is recommended to work with disinherited spouse lawyers.

Can an Ex-Wife Contest a Will in BC – Legal Rights of a Divorcee

Can an Ex-Wife Contest a Will in BC - Legal Rights of a Divorcee

In British Columbia, divorce automatically revokes any provisions in a person’s will that benefit their former spouse. This means gifts and appointments to the former spouse are treated as if the former spouse had died before the testator, unless the will explicitly states otherwise.

A surviving ex-spouse may conceivably be able to contest the validity of a will if they believe it was improperly executed, that the will-maker lacked testamentary capacity, or suspect undue influence was exerted over the will-maker. But as discussed above, a surviving ex-spouse must have legal standing to do so. An ex-spouse may have an interest in the estate that gives them legal standing to contest a will if they were named as a beneficiary in a pre- or post-divorce will, or if they are a creditor of their former spouse’s estate (e.g., their former spouse owed them money or failed to comply with a court order relating to property division during their lifetime).

Surviving ex-spouses do not have legal standing to contest unfair wills. For example, the BC Court in Lee v. Chau, 2021 BCSC 70 affirmed that a separated spouse no longer qualifies as a “spouse” and has no right to bring a wills variation claim. In that case, the wife who sought to vary the will that disinherited her had been estranged from her husband for an extended period before his death. Her disinheritance was left undisturbed by the court.

Separated but not Divorced – Wills and Estate Division

It can take years to resolve property issues after a marriage breaks down. If family property issues arising from the relationship haven’t been resolved when one spouse dies, the surviving spouse has legal rights. BC’s Family Law Act states that, upon separation, each spouse has a right to an undivided half interest in all family property and is equally responsible for family debt.

According to the inheritance laws for separated but not divorced couples, if your ex dies after separation but before you have finalized your divorce or resolved property issues on a final basis by court order or separation agreement, you continue to have the right to pursue equal division of family property. Section 3 of the Family Law Act allows former spouses to bring claims under that Act for family property division, and section 150(2) of WESA states that it is not necessary for the family law claim to have already been commenced to survive death.

That means you can still bring a family law claim against their estate, even if you haven’t yet started your family law claim when your separated spouse dies. You must do so within two years of the separation for common law spouses. There is no limitation period for formerly married spouses if no divorce order has been granted.

Legal Grounds for Contesting a Will

The legal grounds for contesting a will in British Columbia are limited. A will can be challenged due to improper execution, undue influence or coercion, fraud, mistake, unfairness in the will, or on the basis that the will-maker lacked testamentary capacity to make a will.

Procedure for Contesting a Will

Procedure for Contesting a Will

Contesting a will in British Columbia can be a complex and challenging process, but it is possible to win if you have a valid legal claim, proper standing, and can provide evidence to support your case. Steps typically include gathering evidence, filing a legal claim in the BC courts, attending mediation or using other forms of alternative dispute resolution to reach a settlement, and proceeding to trial if an out-of-court resolution is not possible.

The best first step is to consult with a lawyer who is experienced in contesting wills in British Columbia. Your lawyer can explain the evidence you will need, inform you of how long you have to contest a will, ensure deadlines aren’t missed, and help you prepare the best legal strategy for your case.

What if an Ex-Spouse Dies Without a Will?

If a person dies without a will, they are said to have died “intestate” and their estate must be distributed according to the framework set out in the Wills Estates and Succession Act, (“WESA”). For example, if a married person with children dies without a will, the rules state that their surviving spouse is the beneficiary of a preferential share of the deceased’s estate, with the deceased’s biological children being beneficiaries of what remains after the preferential share goes to the surviving spouse.

The situation is different if the spouses separated before one of them died. If a person dies intestate, their ex-spouse (whether they were formerly married spouses or common law spouses who cohabited for at least two years) receives nothing under WESA’s intestacy rules. Note, however, that a surviving spouse may continue to have the right to bring a family law claim for the division of family property.

What Happens to an Existing Will When Spouses Separate?

What Happens to an Existing Will When Spouses Separate?

The Wills, Estates and Succession Act defines when a person is a “spouse” for determining estate rights. The term includes married spouses and common law spouses (couples who lived in a marriage-like relationship for at least two years immediately prior to the willmaker’s death).

If a person’s spouse is named as a beneficiary but the relationship ends before that person dies, the gifts to the former spouse are automatically revoked by WESA s. 56. The same is true if the person’s will names their now former spouse as executor of their estate. The surviving spouse is treated as though they died before their ex-spouse, and they are no longer the executor or a beneficiary of the estate. The rest of the will remains in force, but the gifts go to other people named in the will. If no alternate executor is named, the court will have to appoint one.

There are a couple of exceptions to note here. First, if the couple reconciles within a year of separation and live together for at least 90 days, the automatic disinheritance no longer applies and the gifts in the will stand. Second, timing is important. If a new will is made after separation or divorce and names a former spouse as executor or heir, it is likely that the gifts and appointments will be valid and enforceable—especially if the will is carefully drafted to specifically state that the ex-spouse should still be included in the will and receive an inheritance.

Legal and Financial Implications of Contesting a Will

Estate litigation can be costly. The average cost to contest a will in BC ranges significantly depending on the unique circumstances of your case and several other factors. When your claim is successful, you are likely to be awarded your legal costs, to be paid out of the estate. This offsets or reimburses you for at least some of the legal fees you incurred to contest the will.

Before you start court proceedings, you need to know if it’s going to be worth it. If your ex-spouse has died and you are considering litigation options, we strongly recommend that you reach out to an estate litigation lawyer. We can advise you on the strength of any claim against your ex-spouse’s estate, including drawing on our family law experience to help you decide if a family law claim against the estate is the most advantageous option.

Preventative Measures and Legal Advice

Preventative Measures and Legal Advice

After separation, it can be challenging to sort through property rights and determine who is entitled to what. It gets even more challenging when inheritance issues arise after separation and divorce.

When drafting a will in British Columbia to minimize the risk of legal challenges, especially post-divorce, it’s crucial to ensure the document is clear, comprehensive, and updated regularly. Clearly outline all beneficiaries and reasons for excluding anyone who might expect to inherit, and clearly state any provisions regarding former spouses to reflect their current status post-divorce, ensuring gifts or appointments to them are either explicitly revoked or reaffirmed as intended. It’s very common for spouses to leave their estates to each other in their wills. Many spouses want to change their existing wills after separation, but some want to keep their former spouse as their executor or beneficiary of their estate despite the breakdown of the marriage. In either case, it’s essential to seek legal advice when dealing with complex estate planning issues or potential will disputes that can arise between exes.

Have More Questions on an Ex-Spouse Contesting a Will?

To reiterate, an ex-wife can potentially contest a will under certain circumstances, such as her not being adequately provided for in the will or if there are legal grounds such as lack of testamentary capacity, undue influence, or fraud in the making of the will. To ensure the best results, it is recommended to reach out to an experienced lawyer to guide you through the process.

Onyx Law Group is comprised of family and estate lawyers in New Westminster who give creative legal counsel to solve complex problems. We are not afraid to advance novel arguments that will change the legal landscape to make the law better for everyone. We are known for our unique approach, grounded in our competency in both areas of family law and estate law, which allows us to navigate the trickiest aspects of personal disputes competently and effectively. Reach out to us today to arrange a free consultation.

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Onyx Law Group represents clients in family law, estate and trust litigation, estate planning and probate matters. Consult with our experienced team at 
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