WESA #12 – Bequests to Former Spouses Lapse

Deemed Lapse of Gift to Result from Triggering Event under the Family Law Act

Section 16 of the current Wills Act provides that gifts to a spouse are revoked only upon an order for judicial separation, judgment for divorce, or a court decree of nullity.

Under the WESA, this provision has been extended and harmonized with the Family Law Act. By defini­tion, a person now ceases to be a spouse if an event occurs that causes an interest in family property to arise within the meaning of the Family Law Act (WESA, s. 2(2)).

A person also ceases to be a spouse after two years separation for the purposes of the WESA legislation.

Accordingly, a gift in a will to a person who has subsequently ceased to be a spouse, or an appointment of that person as an executor, is revoked and any gift will be treated as though the spouse had prede­ceased the will-maker (WESA, s. 56(2)).

This is however subject to a contrary intention appearing in a will. It should be noted however the revocation continues notwithstanding a subsequent reconciliation of the will-maker and the spouse (s. 56(3)).

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

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