I was recently asked to write an article on the effect of WESA on the Wills Variation act for the Canadian Bar Association.

There in fact are very few changes under WESA relating to the WVA, other than what the original definition of spouse had been under the Wills Variation act

I wrote my article and then had to withdraw it at the last moment as the Government introduced legislation only a few days before the introduction of WESA on April 1, significantly changing the definition of Spouse.

 

The conflict arises between the definitions of spouse under the Family Law act, and that of spouse under the Wills Variation act.

Anna Laing, a senior lawyer who does both Family and Estate litigation posed the following question to senior practitioners today. I admittedly do not know the clear answer:

a)         whether the surviving spouse can commence a Family Law Act proceeding against the estate of the deceased spouse or simply has a trust claim against the deceased spouse’s estate for his or her share of the family property.  I surmise your answer might be the former based on this statement:

Essentially, the court will have to determine WHAT the deceased actually owned at the date of death, given that the separated spouse had an interest in spousal property.  Upon the determination of the spouse’s share of family property, the spouse would have a claim on the estate like any other debtor and would have to be paid (or consent) prior to any distribution of the estate.

In that case, is it your view that the surviving spouse can access the reapportionment provisions of the FLA?  Can the spouse access s. 96, which allows a spouse to make a claim against excluded property, even though the spouse does not acquire an undivided one-half interest in that property upon separation?

 

b)         what happens in the case of a surviving spouse where the deceased spouse died owning a lot of property that happened to all qualify as excluded property.  Put in concrete terms, when spouses A and B marry, spouse A has $20,000,000 in assets.  She supports the couple lavishly during their marriage but when she leaves Spouse B after 12 years of marriage, her assets are worth $17,000,000 and are excluded property.    She dies shortly after separation before Spouse B has commenced an FLA proceeding but after making a will that disinherits him.  Had she lived, she would likely have a significant support obligation to Spouse B.  Under the Wills Variation Act, Spouse A would likely have at least a moral obligation to have made some provision for Spouse B.  It seems to me that under the FLA and WESA as currently constituted, Spouse B gets nothing.  That does not seem right.