Separation revokes a testamentary gift to a spouse, unless there is good evidence of a contrary intention

Subject to a contrary intention appearing in your will, a gift to your spouse made in your will is automatically revoked upon a separation (Section 56(2) of the Wills, Estates and Succession Act S.B.C. 2009, c. 13 (“WESA“)).

If you still wish to benefit your ex-spouse in your will (it does happen!), then you should update your will post-separation to make clear that you intend to make a gift to them despite the separation.

But what if you are named as a beneficiary in your ex-spouse’s will that was made prior to your separation? What if your ex-spouse wasn’t aware that a separation revokes a gift to a spouse, your spouse mistakenly believed that the gift to you in their will was still valid, and you have evidence that your spouse wanted to continue to benefit you upon their death despite your separation?

A will, or a part of a will can be revived under s. 57 of WESA. This may be done by an order under s. 58 of WESA, which allows the court to order that a record or document be fully effective as though it had made as the will or part of the will of a deceased person or order the revival of a will of the deceased person. I have previously written about s. 58 here. In effect, this section allows a document that does not meet the technical requirements of a will to be fully effective as if it was the deceased’s will. It also may allow a part of a will that has been revoked to be revived and be included as part of the will.

This is what happened in the recent case of Jacobson Estate (Re) 2020 BCSC 1280. The deceased made a will in 2014 which provided that her common law spouse was to receive the residue of her estate. In 2017 she separated from her spouse. She never made a new will.  The issue was whether her ex-spouse was entitled to the residue of the deceased’s estate.

The evidence before the B.C. Supreme Court was that the deceased spoke with her lawyer, and was adamant that her spouse was to still receive her estate as per her will, despite the fact that they separated. The deceased was not aware of s. 56(2) of WESA and the fact that her separation revoked the gift in her will to her spouse. The court held that had she been aware of this, she would have prepared a new will or codicil to ensure the gifts to her spouse were effective.

The deceased repeatedly and unequivocally stated to her lawyer and a friend that she wanted her estate to go to her spouse despite her separation. The court held that the will, including the gifts to the spouse constituted a “document”, which could be given effect as the will of the Deceased, even though parts of it had been technically revoked by the separation. The deceased believed the gifts to her spouse were still valid, and it was her testamentary intention to make those gifts. As a result, the entire will, including the clauses which gifted to her spouse, was admitted to probate.

It is important to consider the effect of a separation on the validity of the terms of your will (including your choice of executor) and take the necessary steps to update your estate plan as your circumstances change. In Jacobson, the judge observed that “it is hard to imagine how the deceased’s testamentary intention could be established more clearly than it is on the evidence before me,” and the court was able to recognize and uphold the deceased’s intentions.  This evidence may not always be available, and you may unintentionally disinherit someone that you intended to benefit under your will.