Under British Columbia legislation, a testamentary gift to a spouse is automatically revoked if couples cease to be spouses. However, a court may use its power to give effect to the will if there is evidence of the testator’s contrary intention, as was demonstrated in a recent case.

Testator Leaves Estate to Partner After Separation

The testator had lived with her common law partner in a marriage-like relationship for over 30 years; they had no children.

The testator had created a will dated November 7, 2014, which provided that if her partner survived her, the partner was to receive the testator’s personal property as well as the residue of her estate.

However, on June 1, 2017, the testator and her partner separated.

Following the separation, the testator met with a lawyer to discuss the separation and the possibility of making a new will. However, after some discussion, the testator told the lawyer that she wanted her partner to inherit notwithstanding the separation, stating that she had always wanted her partner as her beneficiary.

The testator never changed her 2014 will. She died in Victoria, British Columbia, on March 19, 2019.

Revocation and Revival of Testamentary Gifts under Legislation

Pursuant to s. 56(2) of the Wills, Estates and Succession Act (“WESA”),  a testamentary gift to the spouse of a will-maker is automatically revoked if and when they cease to be spouses. Section 56(2)(a) states:

Revocation of gifts

56   (2) If a will-maker

(a) makes a gift to a person who was or becomes the spouse of the will-maker[…]

and after the will is made and before the will-maker’s death the will-maker and his or her spouse cease to be spouses under section 2 (2)[…], the gift, appointment or power of appointment is revoked and the gift must be distributed as if the spouse had died before the will-maker.”

However, s. 56(1) states: “This section is subject to a contrary intention appearing in a will.”

Additionally, ss. 57(4) and 58(2) and (3) of the WESA set out:

“Revival of will

57 (4) A […] part of a will that has been revoked may not be revived except

(a)     by an order of the court under section 58 if the court is satisfied that the will-maker intended to give effect to the will or part of the will that was revoked; or

(b)    in accordance with any other provision of this Act that recognizes the revival of a will.

Court order curing deficiencies

58 (2) On application, the court may make an order under subsection (3) if the court determines that a record, document or writing or marking on a will or document represents

(a)      the testamentary intentions of a deceased person,

(b)      the intention of a deceased person to revoke, alter or revive a will or testamentary disposition of the deceased person, or

(c)      the intention of a deceased person to revoke, alter or revive a testamentary disposition contained in a document other than a will.

(3)      Even though the making, revocation, alteration or revival of a will does not comply with this Act, the court may, as the circumstances require, order that a record or document or writing or marking on a will or document be fully effective as though it had been made

(a)      as the will or part of the will of the deceased person,

(b)      as a revocation, alteration or revival of a will of the deceased person, or

(c)      as the testamentary intention of the deceased person.”

The testator’s lawyer claimed that she had been unaware of s. 56(2) of the WESA and that, had she known of it, she would have either prepared a new will or drawn a codicil to the will to ensure the gifts to the partner were effective. However, no such steps were taken during the testator’s lifetime and the clauses leaving property to the partner were rendered ineffective.

Accordingly, the executor of the testator’s will and trustee of the estate (the “trustee”), sought an order under s. 58(2)(b) of the WESA, reviving the clauses of the will that gave property to the testator’s partner.

Court Gives Effect to the Testator’s Intentions

The trustee submitted that the central inquiry under s. 58 of the WESA was whether there was an authentic document that recorded a deliberate or fixed and final expression of intention regarding the deceased’s property.

The trustee stated that the evidence demonstrated that the will was intended as a record of the testator’s testamentary intentions and that she had expressed, post-separation, testamentary intent by affirming the clauses that left her estate to her partner.

The court noted that s. 58 is remedial in nature and confers a curative power.

After finding that the will met all formal requirements, the court stated:

“The deceased was unaware of the s. 56(2) revocation. […]

Here, because the deceased was unaware of the revocation, her post-separation statements and conduct should be considered from her perspective. To the deceased, all of the terms on the face of the Will constituted the terms of her intended testamentary document. Post-separation, the deceased was aware of the specific terms set out on the face of the Will, and she regarded those terms as existing in fact (i.e., irrespective of their legal effect). She unequivocally, repeatedly and consistently affirmed the terms appearing on the face of the Will as an accurate representation of her testamentary intentions both after separation and while of capacity. I am left without doubt that the terms on the face of the Will […] represent the deceased’s true testamentary intention.

The material time for determining testamentary intention need not be the date of creation of the document […]. Here, I am satisfied that the Will […] accurately reflects the deceased’s fixed testamentary intentions as manifested from September 30, 2017, through to her death.”

While the court found that the testator did not comply with the legislative formalities of re-executing her will or executing a codicil, she did unequivocally manifest her intentions repeatedly in statements to her lawyer and power of attorney. The court stated that the purpose of s. 58 is to ensure that discernible testamentary intentions are not thwarted “for no good reason” by a failure to comply with statutory requirements.

The court, therefore, declared the terms set out on the face of the will to be fully effective as the testator’s will at the time of her death, and that the clauses leaving her personal property as well as the residue of her estate to the partner were effective.

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If you require assistance with the administration of an estate, whether it be guidance through the process or executor services, contact the knowledgeable estate administration lawyers at Cherkowski Marsden LLP. We will provide trusted legal advice to help with the navigation and completion of probate in an efficient and compassionate manner. We can be reached online or by phone at 250-308-0338 (Vernon office) or 250-803-9171 (Salmon Arm office).