NOTE: The law in British Columbia has now been changed so that the rights of a common law spouse are similar to the rights of a legally married spouse to vary the will of a deceased spouse.  The following article is of historical interest.

In a recent case, the Supreme Court of British Columbia recognized the right of a common law spouse to apply to the court to vary the will of a deceased spouse thus extending the rights of common law spouses in the Province.  The recent decision of the Court ensures that common law spouses, and partners in a marriage-like relationship will have the same benefit and protection of the law as legally married individuals.

The Wills Variation Act says that if a person (called the testator) dies leaving a will that does not, in the court's opinion, make adequate provision for the proper maintenance and support of the testator's wife, husband or children, the court may, in its discretion, in an action by or on behalf of the wife, husband or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the testator's estate for the wife, husband or children. This allows a surviving husband or wife, and the children, to challenge a will. If the challenge is upheld by the court, then the will effectively is re-written and the estate distributed according to the terms set out by the court.


The Canadian Charter of Rights and Freedoms provides to all Canadians certain basic rights and freedoms. One of these is the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability. In an earlier case, the Supreme Court of Canada had already decided that a denial of benefits under an insurance policy based upon the person being a common law spouse rather than legally married was discrimination under the Charter.

At present the Province of British Columbia is considering a change to the law so that a common law spouse has the same rights as a legally married individual under the Wills Variation Act. But this has not yet been proclaimed as the law. Under the Wills Variation Act, a common law spouse does not have the right to challenge the provisions of a will of a deceased partner. A husband or wife, and the children of a testator can challenge a will that does not make adequate provision for the maintenance or support of the person making the challenge. A common law spouse or the surviving partner of a marriage like relationship does not have any such right.


The court in the recent case was looking at a longer term relationship during which the common law spouses had shared their lives, shared expenses, and held themselves out as husband and wife. Eventually they were engaged with plans to marry. The husband died before they could marry. Under the will, a relatively small amount was left to the common law spouse who was then 65. As the law was at the time, she could not challenge the will on the basis that it did not make adequate provision for her maintenance.

In the opinion of the court, she was not treated equally under the law. If they had been married, she could have challenged the will. The total estate was almost $500,000.00; she received $10,000.00 plus the right to live in the apartment for 3 years after the death of her partner of 13 years. If she was a widow, no doubt under the law she would be entitled to a much greater share of the estate. The only thing preventing her from challenging the will was that she and her partner were in a common law or marriage-like relationship and not legally married.


The court ruled that the provisions of the Wills Variation Act did not treat all individuals equally and in particular, breached the right to equal protection under the law as provided by the Charter of Rights. To remedy the situation, the court declared the particular provision of the Wills Variation Act invalid. The declaration was suspended for one month to allow the government time to change the law. If it is not changed, then the court ruling will take effect. Individuals living in a common law relationship or a marriage-like relationship will finally be entitled to equal protection of the law in this very significant area.

If you have any questions on the issues discussed above, or on any legal issues  in general, please contact Sucha S. Ollek at: