As we have previously mentioned, the Wills, Estates and Succession Act (“WESA”) comes into force on March 31, 2014. WESA will repeal and replace the Estate Administration Act, the Probate Recognition Act, the Wills Act, and the Wills Variation Act (the “WVA”).

The WVA allows a spouse or child of the deceased make a claim on the basis that the deceased’s Will did not make “make adequate provision for the proper maintenance and support” of him or her. With WESA just around the corner, you might ask: what effect will the new legislation have on wills variation claims?

If the deceased dies before WESA comes into force, nothing will change. The old WVA will apply. Even if the deceased dies on or after March 31, 2014, most things remain the same. Like the WVA, WESA provides that a spouse or child may file a claim to vary the Will on the basis that it did not make adequate provision for proper maintenance and support. However, there are some changes, including the following:

• A married spouse loses the right to make a wills variation claim if the couple has lived separate and apart for 2 years with the intention of living separate and apart permanently. Under the WVA, a married spouse retains the right to make a wills variation claim, even if the couple has lived separate and apart for a significant period of time.
• The time limit for filing a claim has been changed from 6 months after probate (the official proving of a will) to 180 days after probate. This is a minor change.
• When making an award, the court is given the power to order that a trust be created in favour of the spouse or child.

Thanks for reading.