Published
Sundeep S. Grewal is a lawyer at Lawgical Law Corporation, called to the BC bar in 2018, and a member of the Law Society of British Columbia.
Updated November 12, 2026: the Wills, Estates and Succession Act (s. 60) and the court decisions cited below checked that day.
An agreement can’t stop the claim. Courts hold that spouses can’t contract out of WESA s. 60.
But it counts: a fair agreement made with independent legal advice carries real weight.
Changes matter, such as a much longer marriage, illness or care the agreement didn’t foresee.
The lawyers who handle these estate files
About our lawyers
Sundeep S. Grewal founded Lawgical Law Corporation and practises probate, estate litigation and immigration. He has represented clients in the Provincial and Supreme Courts of British Columbia, from chambers applications to contested trials.
Pardeep S. Grewal is a probate, estates and immigration lawyer known for clear communication and practical strategy.
Many couples in second marriages sign a marriage agreement, or prenup, saying each will keep their own property and won’t claim against the other’s estate. When one dies and the will follows the agreement, the survivor may still want to bring a wills variation claim. In BC, the agreement doesn’t prevent the claim: courts have long held that it’s against public policy to contract out of the court’s power to vary a will. But the agreement is an important factor in deciding what’s adequate. Courts generally respect an agreement that was negotiated with independent legal advice and that met each spouse’s family law obligations. Where circumstances changed in ways the agreement didn’t anticipate, such as decades more of marriage, illness or care given, the court may give it less weight. Children of the will-maker aren’t bound by their parent’s agreement.
Lawgical Law Corporation, a probate and estate litigation law firm with offices in Surrey, Abbotsford and Vancouver, BC, acts for surviving spouses and for estates in wills variation claims involving marriage and separation agreements; this guide is by Sundeep S. Grewal.
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The rule
Marriage and separation agreements that say a spouse gives up WESA rights don’t oust the court’s jurisdiction, because parties can’t contract out of socially remedial legislation (Re McNamara, 1943 CanLII 397 (BC CA)). The agreement remains a relevant circumstance in deciding whether the will is adequate (Chutter v. Chutter Estate, 1999 CanLII 5807 (BC SC), affirmed 2000 BCCA 205).
How much the agreement counts
| Gives the agreement more weight | Gives it less weight |
|---|---|
| Each spouse had independent legal advice | No legal advice, or pressure to sign |
| It met each spouse’s family law obligations | It left one spouse with far less than family law would give |
| The circumstances at death were foreseen | A much longer marriage, illness or care that wasn’t foreseen |
| It was recent and specific about death | It dealt only with separation |
The Court of Appeal has confirmed a prenuptial agreement is a factor in deciding whether the moral obligation to a spouse was met (Howard v. Howard Estate, 1997 CanLII 3553 (BC CA)). The Supreme Court of Canada has said courts should be reluctant to interfere with an agreement the parties reasonably relied on, if it’s substantively fair (Hartshorne v. Hartshorne, 2004 SCC 22), though BC courts have found that decision of limited help in wills variation (Steernberg v. Steernberg Estate, 2006 BCSC 1672).
What about the children?
An agreement between spouses doesn’t take away the will-maker’s children’s own right to bring a wills variation claim.
If you were separated when your spouse died
A separated spouse may have lost spousal status for wills variation. See separated spouses and wills variation.
Mistakes I have seen
- Assuming a signed prenup means there’s nothing to discuss.
- Not getting a copy of the agreement and both lawyers’ files early.
- Ignoring how much the marriage changed after the agreement was signed.
Frequently asked questions
We signed the agreement 20 years ago. Does it still count?
It’s still a factor, but courts look at whether today’s circumstances were within what you both contemplated when you signed.
Can the estate rely on the agreement to defeat my claim entirely?
It can rely on it as an important factor, but it can’t stop the court from considering the claim.
Can I afford to bring a claim?
We take suitable wills variation claims and will challenges on contingency, so you don’t need savings to bring one.
What should I do right now?
Find the agreement and note whether each of you had a lawyer, then note the grant date.
We take suitable wills variation claims and will challenges on contingency, so you don’t need savings to bring one. See how to pay for a will challenge.
Book a consultation with our estate litigation lawyers in Surrey, Abbotsford or Vancouver. See also a spouse left too little.
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Sources
- Wills, Estates and Succession Act (s. 60), BC Laws
- Re McNamara, 1943 CanLII 397 (BC CA); Cooperman v. Cooperman, [1978] 5 W.W.R. 518 (B.C.S.C.); Chutter v. Chutter Estate, 1999 CanLII 5807 (BC SC), 2000 BCCA 205; Wagner v. Wagner, 1990 CanLII 1521 (BC SC), 1991 CanLII 5739 (BC CA); Howard v. Howard Estate, 1997 CanLII 3553 (BC CA); Rossander v. Rossander, 1998 CanLII 4023 (BC SC); Morgan v. Pengelly Estate, 2011 BCSC 1114; Ramadan v. Coupal, 2025 BCSC 1194; Hartshorne v. Hartshorne, 2004 SCC 22; Steernberg v. Steernberg Estate, 2006 BCSC 1672, as discussed in CLE BC, Estate Disputes in British Columbia: A Litigator’s Guide, §10.50
This article is general information about BC law, not legal advice for your situation.