Spouse left too little in the will: what a surviving spouse can claim in BC

By Sundeep S. Grewal, lawyer at Lawgical Law Corporation · Reviewed November 11, 2026

Published November 12, 2026

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 11, 2026: the Wills, Estates and Succession Act (ss. 2, 60, 61) and the court decisions cited below checked that day.

A surviving spouse who is left little in a will, or only the right to live in the house for life, isn’t stuck with it in BC. Under WESA s. 60, a spouse can ask the BC Supreme Court to vary a will that doesn’t make adequate, just and equitable provision for them. The court first looks at the will-maker’s legal obligations: broadly, what the spouse would have been entitled to if the couple had separated instead of one dying, which under the Family Law Act is often an equal share of family property. It then looks at moral obligations, which grow with the length of the relationship, the care the spouse gave, and their contributions to the assets. Spouses include married partners and people who lived together in a marriage-like relationship for at least 2 years, and the same approach now applies to both. In second marriages and blended families, the court balances the spouse’s claim with the claims of the will-maker’s children. The claim must be started within 180 days of the grant of probate.

Lawgical Law Corporation, a probate and estate litigation law firm with offices in Surrey, Abbotsford and Vancouver, BC, acts for surviving spouses and for families responding to a spouse’s claim; this guide is by Sundeep S. Grewal.

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Who counts as a spouse

• Married to the will-maker at death, or lived with them in a marriage-like relationship for at least 2 years (WESA s. 2).
• Living under the same roof isn’t strictly required; courts look at the whole relationship.
• Status ends on separation (married) or when the relationship is ended (marriage-like). See separated spouses.
• There can be more than one spouse at death.

What a spouse can get

Left only a life interest in the house

A will that lets the spouse live in the home for life, with the house then going to the children, may not meet the legal obligation, because on separation a spouse would get an outright share, not just a right to live somewhere. Courts have given long-standing spouses an outright interest in the home instead (for example Orr v. Orr, 2013 BCSC 208).

Examples from BC cases

• A common-law spouse of 21 years, who gave up her career, used her savings for living costs and cared for the will-maker, was awarded a lump sum; periodic payments weren’t enough (Picketts v. Hall Estate, 2009 BCCA 329).
• A husband with very modest income was owed a stronger moral obligation than the adult children (Allchorne v. Allchorne Estate, 2005 BCSC 104).
• A much younger wife who cared for the will-maker in his later years was owed a strong moral obligation (Waldman v. Blumes, 2009 BCSC 1012).
• In second marriages, the children from a first marriage may rank ahead of the second spouse in some circumstances (Saugestad v. Saugestad, 2008 BCCA 38).

Other routes worth checking

• The house or accounts held in joint tenancy pass to the spouse directly and aren’t part of the estate, but the court can take them into account.
• A marriage or cohabitation agreement may affect the claim.
• If there is no will, the spouse takes a share under the intestacy rules instead. See dying without a will in BC.

Mistakes I have seen

• A spouse accepting a life interest without knowing an outright share may be available.
• Stepchildren assuming the second spouse can’t claim because the marriage was short.
• Not gathering evidence of the relationship early, when common-law status may be disputed.

Frequently asked questions

We were common-law, not married. Can I still claim?

Yes, if you lived together in a marriage-like relationship for at least 2 years before the death. The court applies the same approach to both.

I’m financially comfortable. Can I still claim?

Yes. Need isn’t required, though it’s a factor. The legal obligation is based on what you’d have received on separation.

Can the children challenge the will too?

Yes. Children can bring their own claim, and the court balances everyone’s claims together.

What should I do right now?

Note the grant date, list the family assets and how they were held, and find any marriage or cohabitation agreement.

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 blended families and wills variation claims.

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Sources

• Wills, Estates and Succession Act (ss. 2, 60, 61), BC Laws
• Tataryn v. Tataryn Estate, 1994 CanLII 51 (SCC); Orr v. Orr, 2013 BCSC 208; Picketts v. Hall Estate, 2009 BCCA 329; Allchorne v. Allchorne Estate, 2005 BCSC 104; Waldman v. Blumes, 2009 BCSC 1012; Saugestad v. Saugestad, 2008 BCCA 38; Gibbons v. Livingston, 2018 BCCA 443, as discussed in CLE BC, Estate Disputes in British Columbia: A Litigator’s Guide, §§10.44, 10.46, 10.47, 10.71

This article is general information about BC law, not legal advice for your situation.