As I noted in my January 2011 article, we are scheduled to welcome this year the new Wills, Estates and Succession Act. However, the timing of its formal introduction has been delayed as the government attempts to sort out some of the issues that have arisen since the legislation was drafted. One area that is of particular concern is how this new legislation treats spouses.
It is a concern for two reasons. The first reason is this new legislation maintains a clear distinction between married spouses and common law spouses. While an elaboration of the rules governing both married and common law spouses would normally be welcome news, this runs counter to the Province’s planned overhaul of its Family Law legislation. In reforming our existing Family Law legislation, the Province aims to reduce, if not remove, the distinctions between married spouses and common law spouses. This is contradictory to the new Wills, Estates and Succession Act, which is moving in an opposite direction by making the distinction clearer. This contradiction needs to be addressed before the new wills and estate legislation can come into force.
The second reason for concern is that the operation of the new legislation with respect to spouses has the potential to create a “limitation period” of sorts for spouses to launch a wills variation action claim. This is of particular concern to spouses who have separated but have not taken steps to formally divide their property and/or seek a divorce. If a person dies and does not make adequate provision in their will for his or her spouse, that spouse has the right to launch a claim to vary the will.
Currently, this is done under the Wills Variation Act and this same right remains in the new legislation. At present, this right is maintained even if the couple has separated, but not divorced, because the couple is still technically married – they are still spouses. For example, a married couple separates. They do not divorce. They have not formally divided their property. At some point, one of the spouses dies. That deceased spouse does not leave anything in the will to the surviving spouse. Even though they separated, that surviving spouse is still the spouse and can commence a claim to vary the will. However, the new legislation includes a provision that if the spouses separate with the intention of living separate and apart permanently, then after two years, they are no longer considered spouses, even if they have not obtained a divorce. Only one of the spouses needs to have this intention. Once they are no longer considered spouses, then they each lose the right to commence an action to vary the other’s will. Consider the same example above: the couple married, separated and did not divorce. At least one of them intends to live separate and apart permanently. They did not have their property formally divided. It is more than two years since they separated and one of the spouses dies.
The new legislation suggests that the surviving spouse would not then have the right to commence an action to vary the deceased spouse’s will as they are no longer considered spouses. Many couples who separate (and do not divorce) do not take steps to formally divide their property and there are many reasons for this. If this new legislation remains unchanged, then when spouses separate with the intention of living separate and apart permanently, they only have two years less a day to divide their property, or they will risk not being able to have a right to claim anything from the other spouse’s estate when that other spouse dies. How the government will address this concern remains to be seen. Regardless of whether or not this part of the new Wills, Estates and Succession Act is changed, it is a good idea for people to attend to their matters sooner than later and not let them linger.
If this part of the legislation remains unchanged, then leaving it to later may be too late. I recommend that anyone who is separating or who has separated to speak to a lawyer to consider how this change in their marriage will interact with their estate plans and rights to a spouse’s property.
Trusts & Estate Law Lindsay Kenney LLP