Canada: The Forgotten Will On Spousal Separation

Last Updated: November 5 2013
Article by Douglas Howard

One of the unfortunate realities of marriage breakdown is that the spouses often do not promptly update their estate plans to reflect the dramatic changes in circumstances. If one of the spouses passes away leaving an outdated Will, the legal representative of the deceased spouse faces the daunting challenge of attempting to correct the provisions of this Will.

This article will briefly comment on what kind of relief can be found in the Wills Act, Wills Variation Act and the Wills, Estates and Succession Act ("WESA"), which is scheduled to become operational on March 31, 2014, and the effect of a Separation Agreement on an outdated Will.

Wills Act

Some relief for an outdated Will may be found in the Wills Act, but only if a certain triggering event has occurred, as outlined in sections 16, 19 and 20. The Courts in British Columbia have consistently adopted a strict interpretation of the Wills Act with respect to these sections. Thus, if you cannot legally establish (i) a judicial separation, (ii) divorce, or (iii) a declaration that the marriage was void or annulled, then the Wills Act will not be of any assistance in rectifying the outdated Will. A separation without one of those three events, even if evidenced by a written Separation Agreement, is not sufficient to obtain relief under the Wills Act. The Wills Act will continue to apply up until the point where WESA comes into force.

Wills Variation Act ("WVA")

The WVA gives standing to spouses and children to apply to the Courts to vary the terms of a Will if a testator dies leaving a Will that does not, in the Court's opinion, "make adequate provision for the proper maintenance and support of the testator's spouse or children ..."

In hearing a WVA action, the Courts will consider all relevant facts, including the fact that the surviving spouse was separated from the deceased spouse. There are numerous cases in British Columbia dealing with the WVA, but the Courts have been consistent in holding that the Courts will consider, but are not bound by, the provisions of a Separation Agreement. For example, if a Separation Agreement contains the usual language that the surviving spouse is not to share in the estate of the deceased spouse, then in the WVA action, the surviving spouse will be arguing that the Separation Agreement is of little evidence in determining what is fair, whereas the legal representative of the estate and the applicant (often children from another marriage) will be arguing that the Separation Agreement is material to the extent that the surviving spouse should not receive anything.

The British Columbia Courts have been clear that an express renouncement of rights in a Separation Agreement is not a bar to a WVA application, but is merely one factor to be considered.

Separation Agreements

Generally, Separation Agreements can be drafted so that the benefits and obligations of the parties are binding not only on the parties but also on their respective estates. Separation Agreements must be carefully considered and clearly drafted if they are to be useful in correcting an outdated Will.

Firstly, the Courts distinguish between a "right to make a claim" and a "right to receive a gift". Many Separation Agreements prohibit the surviving spouse from making a claim against the estate of the deceased spouse, but do not specifically prohibit the surviving spouse from receiving a gift. These Separation Agreements will not affect or cure the provisions of an outdated Will as the executor will still be bound to carry out the terms of the will.

Secondly, the case law is clear that it is much easier for a Separation Agreement to revoke a beneficiary designation than it is to change the testamentary intention of the deceased spouse. This is reasonable because the written documentation required to change a designated beneficiary and its due execution is less legally onerous than it is for varying a Will.

In order for a Separation Agreement to be an effective instrument to alter the rights under a Will, it must express a deliberate or fixed and final intention as to the disposition of property on death. Keep in mind that even if properly drafted, the Separation Agreement does not in fact change the Will. It only creates the legal framework whereby the legal representative of the deceased is not legally obligated to make payment to the surviving spouse under the Will and the surviving spouse is legally estopped from enforcing payment.

To be effective to achieve its intended results, the Separation Agreement must contain the following covenants and agreements:

  • the surviving spouse will not make a claim against the estate of the deceased spouse;
  • the surviving spouse will not accept any appointment as a legal representative of the deceased spouse, whether under a Will or on an intestacy;
  • the surviving spouse will not receive any benefits as a consequence of the death of the other spouse, whether under a Will or on an intestacy or under a beneficiary designation, and the surviving spouse renounces any such benefits;
  • at the request of the legal representative of the deceased spouse, the surviving spouse will forthwith execute and deliver to the legal representative, in a form satisfactory to the legal representative, a renunciation or disclaimer of any such benefits;
  • the surviving spouse will forthwith pay to the legal representative the amount of any benefits paid by any third party to the surviving spouse resulting as a consequence of the death of the deceased spouse; and
  • the surviving spouse agrees that the estate of the deceased spouse will be distributed as if the surviving spouse had died first.


The likelihood of the estate of a deceased spouse being stuck with an outdated Will will be greatly reduced by the introduction of WESA.

The relevant provision in WESA, section 56(2), eliminates the categories of judicial separation, divorce and nullity under the Wills Act and simply states that an appointment of or gift to the surviving spouse is revoked if the spouses had ceased to be spouses. Under subsection 2(2), spouses who are married cease to be spouses if (i) they live separate and apart for at least two years with one or both having an intention to live separate and apart permanently, or (ii) if any event occurs that leads to a division of assets under the Family Law Act. In the case of a marriage-like (common law) relationship, the parties cease to be spouses when one or both of them terminate the relationship. Thus, if spouses separate and neglect to renew their Wills, the outdated Wills will automatically become updated in the circumstances described above, and any appointments and gifts to the former spouse made thereunder will be revoked.

Additionally, section 58 of WESA introduces a significant change to what is traditionally considered to be a Will. Under Section 58(3):

"...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."

Thus, from the date WESA becomes law, a well-crafted Separation Agreement may be held not only as a statement of the spouses' testamentary intentions but, by virtue of 58(3), may be declared by the court to be a valid will or alteration to a will in its own right.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
O'Sullivan Estate Lawyers LLP
Rotfleisch & Samulovitch P.C.
Richards Buell Sutton LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
O'Sullivan Estate Lawyers LLP
Rotfleisch & Samulovitch P.C.
Richards Buell Sutton LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions