Inheriting Hinges on the Reality of your Intentions

A common motivation for creating a will is to protect and care for our loved ones when we are no longer there to do so. It is a safety net for those who are left to manage the assets and monies of the deceased. Typically, spouses will name each other as their executor and beneficiary.

However, what happens when spouses terminate the relationship with one another? Many believe that even though they have separated from their spouse, if they are still named in the will, they will still inherit the gifts. It may be surprising to learn that under the law, if you separate from your spouse , all gifts given in the will are automatically cancelled . The following case depicts such a scenario where a couple separated, a death occurred, and gifts were automatically revoked.

Christopher Stacey (“Mr. Stacey”) and Stephanie Cross (“Ms. Cross”) were common-law spouses. In 2014, Mr. Stacey created a will which named Ms. Cross as the executor and sole beneficiary.

That summer, Ms. Cross moved out of their home and relocated to the Okanagan with their daughter. Ms. Cross found employment and continued to live in Summerland.

In 2016, Mr. Stacey tragically passed away following a motor vehicle accident. His will still stated that Ms. Cross was the sole beneficiary.

Ms. Cross, believing her appointment in the will and the gifts were still valid, proceeded to deal with the Estate. Will was valid, requested to receive the gifts from the Will. However, her appointment was opposed on the basis that her appointment and the gifts were revoked when the relationship ended.

Section 56 of the Wills, Estates and Succession Act, SBC 2009, c 13 provides that if you separate from your spouse, any appointment as executor or any gifts in the will are automatically revoked. So, why is this case even a topic of discussion? The couple separated and the gifts were revoked as the law stipulates.

However, this case took into consideration new complexities of what constitutes a valid separation. In this case, there were many factors that supported the proof of separation. The court heard evidence that Ms. Cross and Mr. Stacey did not live together, Mr. Stacey was paying child support, and they had signed a separation agreement. Mr. Stacey filed his tax returns as single, and had new relationships with at least 2 other women.

However, Ms. Cross provide evidence that she did not live with Mr. Cross due to his struggles with alcoholism, and she could not live with him until it was safe to do so. She stated that they were still in a spousal relationship: they retained a joint bank account, contributed to the mortgage on the marital home; slept in the same bed when Mr. Cross visited, had family photos taken, and attended events together with their daughter.

Ms. Cross’s relied on Knelsen Estate (Re), 2020 BCSC 134, a previous court case, where the deceased and former partner where in a relationship for 12 years with two young children. Their relationship had many ups and downs with separations occurring over the years. Into a 3 week separation, one passed away. The court determined that the separation was too short of a time period to reflect a definitive end to their relationship. They had invested many years into the relationship especially in comparison to the 3 week separation. There was also evidence that they were both struggling with the short separation that occurred directly before the death.

In the case of Ms. Cross and Mr. Stacey, the court found that the Knelsen Estate (Re) case had some distinct differences. They had been separated for almost two years prior to Mr. Stacey’s death, and Mr. Stacey was dating other people. He referred to Ms. Cross as his “Ex” to others. Their written agreement stated that the parties had begun to live separate and apart since August 7, 2014 and intended to continue to do so.

The court found that the parties clearly intended to separate, and there was no evidence of reconciliation. Accordingly, there was a clear end to the relationship and there was no contrary intention to support that Mr. Stacey intended for Ms. Cross to still inherit his estate. Pursuant to section 56 of the WESA, Ms. Cross’s appointment as executor was revoked and she was not entitled to any gifts in the will.

There are so many things that can have an influence on an outcome of cases like these, and talking to someone with legal experience can prove to be a valuable asset. If you have more questions on this topic or any topics related to Wills and Estate Litigation, get in touch with any one of our lawyers on the Estate Litigation team.

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