Can an ex-spouse bring a claim to vary their ex-spouse's will? The B.C. Court of Appeal dealt with this question in Carswell v. Engle Estate, 2018 BCCA 164.
Can an ex-spouse bring a claim to vary their ex-spouse's will? The B.C. Court of Appeal dealt with this question in Carswell v. Engle Estate, 2018 BCCA 164.
Section 60 of the Wills, Estates and Succession Act ("WESA") offers a mechanism whereby certain people can apply to court for variation of a deceased person's will. However, this option is not open to everyone.
Under section 60 of WESA, the proceeding may only be brought by or on behalf of the "spouse or children" of the deceased.1
Ms. Carswell was married to Mr. Engle in 1987. The couple later divorced in 1993.
Mr. Engle died in 2014 and left his entire estate to his then-wife, Mrs. Engle. Ms. Carswell brought an application before the B.C. Supreme Court seeking to vary Mr. Engle's will and challenge the will's validity.
Justice Schultes of the B.C. Supreme Court dismissed the application, finding that Ms. Carswell was not a "spouse" for the purposes of section 60 of WESA, and did not have standing to bring the application.2
The Court of Appeal agreed. The Court explained that married persons cease to be "spouses" according to section 2 of WESA when "an event occurs that causes an interest in family property, as defined in Part 5 [Property Division] of the Family Law Act, to arise." Divorce is one such circumstance.3
With respect to Ms. Carswell's application to contest the validity of Mr. Engle's will, the Court found that there were "many reasons" why Ms. Carswell had no standing to contest the will, and while the court below opined that Ms. Carswell lacked standing because probate had already been granted and she was not entitled to notice on an application for grant of probate; the Court of Appeal commented that the most basic reason is that Ms. Carswell is not a spouse and so cannot bring herself within the ambit of legislation she must invoke to obtain a remedy, or within the ambit of the provisions of the Supreme Court Civil Rules allowing her to contest the grant of probate.4
The case of Carswell v. Engle illustrates the importance of spousal status in certain wills variation proceedings. Ms. Carswell and Mr. Engle had been divorced for over a decade at the time that Ms. Carswell's application was brought. However, the facts may not be so clear cut in every case, and there may be situations where it is not so clear whether someone has ceased to be a "spouse" and has lost their standing to seek variation of a deceased person's will under s. 60 of WESA. Whether someone is a spouse or not for the purposes of a wills variation claim can be subject to challenge. This determination is one that can have significant consequences for potential litigants.
Conclusion
The death of a loved one can raise many questions and concerns. If you have concerns, it is best to consult with a lawyer who can provide advice on your legal rights and options. Our estate litigation team at Watson Goepel LLP is here to help you. Consult with one of our estate litigation lawyers who can provide valuable guidance, ensuring that your concerns and any claims are addressed, including claims for wills variation and claims to challenge the validity of a will.
Footnotes
1. For a discussion of a case where the court considered whether a litigant could be considered a "child" of the deceased for the purposes of s. 60 of WESA, see our blog on: Court-ordered DNA testing in Estate Litigation and the decision in Hyslop v. Banks, 2024 BCSC 1848
2. Para 9 BCCA decision.
3. Paras 21-22 BCCA decision.
4. Paras 10 and 23 BCCA decision.
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