The Wills Variation Act and the upcoming WESA - definition of "spouse"

With the date fast approaching when the Wills, Estates and Succession Act (WESA) comes into force (March 31, 2014) we look to provide some insight to any changes that the new act may apply.  As always, preparation is everything.

One notable change is the altering of the definition of a “spouse”.  The relevant section in the WESA is as follows:

When a person is a spouse under this Act

2  (1) Unless subsection (2) applies, 2 persons are spouses of each other for the purposes of this Act if they were both alive immediately before a relevant time and

(a) they were married to each other, or

(b) they had lived with each other in a marriage-like relationship, including a marriage-like relationship between persons of the same gender, for at least 2 years.

(2) Two persons cease being spouses of each other for the purposes of this Act if,

(a) in the case of a marriage,

(i) they live separate and apart for at least 2 years with one or both of them having the intention, formed before or during that time, to live separate and apart permanently, or

(ii) an event occurs that causes an interest in family assets, as defined in Part 5 [Matrimonial Property] of the Family Relations Act, to arise, or

(b) in the case of a marriage-like relationship, one or both persons terminate the relationship.

(3) A relevant time for the purposes of subsection (1) is the date of death of one of the persons unless this Act specifies another time as the relevant time.

 

The Act provides that a pair may be found to be “spouses” if they were married, and not separated for 2 years or more, or were living in a marriage-like relationship for 2 years immediately before the death of the testator.

This may generally seem straightforward but the added section which stipulates when someone ceases to become a spouse adds some difficulty.  Among the sections, the married spouses cease to be so if:

(a) in the case of a marriage,

(i) they live separate and apart for at least 2 years with one or both of them having the intention, formed before or during that time, to live separate and apart permanently, or

(ii) an event occurs that causes an interest in family assets, as defined in Part 5 [Matrimonial Property] of the Family Relations Act, to arise, or

(b) in the case of a marriage-like relationship, one or both persons terminate the relationship.

 

Thus, the magic time is 2 years.  Essentially, a married spouse will be unable to bring a claim for variation of a will under the Act after the couple has been separated for 2 years.  Those in a common-law marriage must be found to be living in such relationship at the time of death of the testator for at least 2 years to qualify to bring a claim under the act.  

Stay in touch for more insight and guidance on the changes which the new WESA will be introducing March 31, 2014.