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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)).

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