An a recent case out of British Columbia highlights an interesting topic often seen in estate law. The matter concerned the law as it pertains to separation of spouses and the wishes of the testator. In this case, the two stood in contrast, and the court had to determine which side its judgment should align with.

The law vs the testator’s wishes

The deceased had been in what the court described as a “marriage—like relationship” with “NH” for close to 30 years. The couple had no children together and separated in 2017, almost two years before the deceased passed away. In the deceased’s 2014 will, she stated that if NH survived the deceased, NH is to receive the deceased’s personal property as well as the residue of her estate.

Since the parties separated two years earlier, the will was in contrast with Section 56(2) of the provinces’ Wills, Estates and Succession Act (“the Act”). The Act automatically revokes a testamentary gift to the spouse of a will-maker if and when they cease to be spouses. The executor of the estate sought an order reviving the clauses of the will that gave the property to NH, meaning the executor wanted NH to still receive what the deceased intended to provide her.

The deceased looks at her will following separation

In 2017, following her separation from NH, the deceased met with a lawyer about the issues arising from the separation. She was advised by a friend to revise her will, and to leave her assets to charity. The deceased then instructed her lawyer to draw up a new will.

While the lawyer recognized that the deceased was elderly and had trouble remembering some details of day-to-day life, she was of the opinion that she was capable of making estate planning decisions. However, the will was the item the lawyer left to last (the lawyer also helped with power of attorney and other matters). The lawyers said she was concerned the deceased had been influenced too much by the friend.

After a meeting between the deceased and her lawyer, the deceased advised that she had always wanted NH as her beneficiary, and instructed the lawyer to leave her as one in the new will.

Various witnesses stated that the deceased mentioned on a number of occasions that she intended for NH to be the beneficiary of her estate.

The law conflicts with the testator’s wishes

The issue is that the Act states if a will-maker 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 … is revoked and the gift must be distributed as if the spouse had died before the will-maker.”

However, the Act also states that the courts can revive part of a revoked will if the court is convinced the will-maker intended to give effect to the will or the part that was revoked.

In this case, the court was told that the deceased was not aware that NH would be cout out of her will if it was not-rewritten. The court agreed, adding that the deceased had been adamant about her wishes and expressed them to a number of people.

The court stated,

“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 – including the (“NH”) clauses – represent the deceased’s true testamentary intention.”

As a result, the court revived the parts of the will that had been revoked.

If you are considering filing an application to challenge a will, contact the estates lawyers at Derfel Estates Law before you proceed. We can help you determine whether you are eligible to bring such a claim, can help you understand your options and rights, and can represent you throughout the challenge process. Call us at 416-847-3580 or contact us online to schedule a consultation.