Relationship changes, especially separation or divorce, can have a significant impact on your estate plan. Many people believe that a will automatically becomes invalid once a relationship ends. In British Columbia, this is not the case.

Under the Wills, Estates and Succession Act (WESA), an existing will continues to be valid after separation or divorce. However, the law changes how certain provisions operate. If you do not review your will after a relationship breakdown, the result can be very different from what you intended.

This article explains how executor appointments, gifts, and other provisions are treated after separation, and why it is important to update your estate plan as soon as your relationship changes.

Your Will Is Still Valid, but Certain Provisions Are Revoked

Section 56(2) of WESA states that when a will-maker has ceased to be a spouse at the time of their death:

"A gift to the former spouse, an appointment of the former spouse as executor or trustee, and any power of appointment granted to the former spouse are revoked."
WESA, s. 56(2)

In practical terms, this means the following.

1. Executor Appointments

If your separated or former spouse is named as your executor, that appointment is automatically revoked. The alternate executor named in your will becomes the acting executor.

2. Gifts to a Former Spouse

Any gift or bequest made to a separated or former spouse is revoked. The gift will pass to the alternate beneficiaries you named.

If there are no alternate beneficiaries, the gift will be treated as if you had died without a will in relation to that specific gift. In that case, the intestacy provisions in WESA determine who receives it.

When Do Spouses Cease to Be Spouses?

Under WESA, spouses cease to be spouses once they have separated. This rule applies to both legally married spouses and common-law spouses.

Importantly, separation does not require:

• A separation agreement
• A court order
• A divorce order

Separation is based on living separate and apart and having at least one person intend to end the relationship. This means the legal consequences of separation can take effect even while you are still working through family law issues such as support, property division, or divorce proceedings.

Why You Should Review Your Will Immediately After Separation

A separation or divorce is one of the most significant life events that can affect your estate plan. Delaying an update to your will can create serious risks. For example:

• An unintended beneficiary may receive part of your estate
• Your former spouse may remain listed as executor until passed over
• Gifts to a former spouse may fail and fall into intestacy
• Your alternate executor may not be the person you would now choose
• Family members may be confused about your wishes, which can increase the risk of estate litigation

Although WESA revokes certain provisions automatically, the remainder of your will remains unchanged. This may not reflect your current goals, relationships, or financial circumstances.

Practical Next Steps

If you have separated or divorced, it is wise to:

• Review your executor and alternate executor appointments
• Confirm your primary and alternate beneficiaries
• Review trust provisions for minor or disabled beneficiaries
• Update your powers of attorney and representation agreements
• Update beneficiary designations for RRSPs, TFSAs, life insurance policies, and pensions
  (These designations do not automatically change under WESA.)

A careful review ensures your estate plan continues to reflect your wishes.

Plan with Confidence: Speak with a Lawyer

Separation or divorce is challenging. You should not have to worry about unintended estate consequences at the same time. If your relationship has changed, now is the ideal time to review and update your will so that it clearly reflects your intentions.

We assist clients throughout Vancouver Island with updating wills, powers of attorney, and estate plans after separation or divorce.

Contact us at ar@jfblaw.ca or 250-756-3823 to talk about your estate plan and ensure your wishes are protected.

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