Impact of Marriage and Divorce on Estate Gifts: Insights from Section 56 of WESA

Life events such as marriage or divorce significantly impact estate planning. In British Columbia, the Wills, Estates and Succession Act (WESA) clarifies what happens to your will following these major changes. Specifically, Section 56 of WESA addresses how the end of a marriage or marriage-like relationship affects testamentary gifts.

This article explains the implications of marriage and divorce on wills, outlines the key provisions of Section 56, and provides guidance on steps to protect your estate planning intentions.

What Section 56 of WESA Says

Section 56 (1-2) explicitly states:

56   (1) This section is subject to a contrary intention appearing in a will.

(2) If a will-maker

1. makes a gift to a person who was or becomes the spouse of the will-maker,

2. appoints as executor or trustee a person who was or becomes the spouse of the will-maker, or

3. confers a general or special power of appointment on a person who was or becomes the spouse of the will-maker,

and after the will is made and before the will-maker's death the will-maker and the will-maker's spouse cease to be spouses under section 2 (2) [when a person is a spouse under this Act], the gift, appointment or power of appointment is revoked and the gift must be distributed as if the spouse had died before the will-maker.

In simpler terms, if you separate from your spouse or common-law partner (after at least two years of cohabitation and later separate permanently) but do not update your will, the law automatically revokes any gift or appointment made to your former spouse. However, the rest of the will remains valid.

How Marriage Affects a Will

Under previous British Columbia law, marriage automatically revoked a person's existing will. However, with the enactment of WESA in 2014, marriage no longer invalidates an existing will.

This change emphasizes the importance of proactive estate planning. If you marry and wish your spouse to inherit your estate, you must explicitly update your will. Without specific provisions, your new spouse may receive less than intended under intestacy rules.

How Divorce or Separation Impacts a Will

The primary effect of divorce or separation under Section 56 of WESA is that any provisions benefiting a former spouse are automatically revoked, provided no contrary intention appears in the will. This includes:

• Gifts or inheritances
  
  

• Appointments as executor or trustee
  
  

• Powers of appointment or other special powers
  
  

However, Section 56 does not revoke provisions for:

• Children from the marriage or relationship
  
  

• Any gifts or appointments explicitly preserved in the will

When discussing the revocation of certain rights or benefits under Section 56, it is essential to understand the specific conditions under which this revocation takes place. Notably, revocation only occurs if the spousal relationship has officially ended through legally recognized means such as divorce, annulment, or a permanent separation. These terms are defined in detail in section 2(2) of WESA.

For instance, if a couple is separated but still has an intention to reconcile or if the separation is not intended to be permanent, then the rights associated with the spousal relationship would remain intact. This distinction is important to ensure that individuals understand the legal implications of their relationship status and the relevant provisions of the law regarding succession and the distribution of assets.

Preserving Gifts to a Former Spouse

If you wish for your former spouse to retain specific benefits or roles specified in your will, even after a divorce or separation, it is crucial to clearly state your intentions. Clearly articulated provisions that reflect this intent can help safeguard your wishes from automatic revocation under Section 56.

To ensure clarity and reduce the potential for future disputes, it is wise to seek professional legal guidance when drafting these provisions. In instances where a will maker was unaware of Section 56(2) and the associated automatic revocation, yet had a strong intention to benefit their former spouse, courts can draw upon Section 58 as a curative power. This allows the courts to correct the will based on the true testamentary intentions of the will maker, facilitating the distribution of the intended gifts to the former spouse.

A significant case that underscores the implications of Section 56 is Jacobson Estate, 2020 BCSC 1280. In this landmark ruling, the court clarified the essential criteria for demonstrating "contrary intention." It emphasized that mere oversights or assumptions are not sufficient; the will maker must explicitly document their intention to benefit the former spouse, regardless of the separation.

This case serves as an important reminder of the necessity for clear language in wills and highlights the importance of regularly reviewing your estate plan following major life events. Regular updates are vital to ensure that your intentions are clearly communicated and respected, leading to your estate being distributed according to your wishes.

Steps to Protect Your Estate Planning

Given the substantial legal implications of marriage, separation, or divorce on your will, consider these proactive steps:

• Regularly Review Your Will: Update it after significant life events like marriage, separation, divorce, or the birth of children.
  
  

• Clearly State Your Intentions: Explicitly specify if you want your former spouse to remain a beneficiary or executor.
  
  

• Consult a Professional: Legal advice ensures your will accurately reflects your wishes and complies with current laws.
  
  

Frequently Asked Questions

What happens to my will if I remarry?
Under WESA, marriage does not revoke your existing will. You must update your will to ensure your new spouse inherits according to your wishes.

Does separation automatically revoke all gifts to a spouse?
Yes, but only if the relationship has ended under WESA, such as after a permanent separation or divorce. Provisions benefiting a former spouse are revoked unless explicitly preserved in the will.

Can I keep my former spouse as executor after divorce?
Yes, but you must explicitly state this intention in your will to avoid automatic revocation under Section 56.

When should I review my will?
Review your will regularly, particularly after marriage, separation, divorce, birth of children, or significant financial changes.

Key Takeaways

• Marriage no longer revokes an existing will under WESA.
  
  

• Divorce or separation automatically revokes gifts and appointments to a former spouse unless explicitly preserved.
  
  

• Clearly stating your intentions in your will protects your wishes and avoids legal complications.
  
  

• Regular reviews of your estate plan are essential to align with your current life circumstances.
  
  

Need Advice?

Parr Business Law specializes in estate planning for young adults, parents and families. Whether you are approaching age 16 or seeking to update an existing will, our team will guide you through the legal requirements and document your capacity and intentions. Book a consultation today to secure your wishes and protect your loved ones.

Sources

AI Statement: OpenAI’s language tools and Grammarly were used to generate synonyms, correct grammatical issues, and adjust sentence structure, ensuring greater clarity for the reader.

WESA:
https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/09013_01#section56

Jacobson Estate:
https://www.canlii.org/en/bc/bcsc/doc/2020/2020bcsc1280/2020bcsc1280.html?resultId=703c6757e3b84f4ebe32e2783525bbda&searchId=2025-07-28T16:04:36:951/ab68c1a77fb247079c7c51955a547a29&searchUrlHash=AAAAAQAfSmFjb2Jzb24gRXN0YXRlLCAyMDIwIEJDU0MgMTI4MAAAAAAB