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If you’ve been left out of a will, here’s what you need to know as a spouse. 

Under the Wills Estates and Succession Act (WESA), only two categories of individuals can apply to change the will. Biological/adopted children and spouses who are left out of a will or only received a small portion can ask the court to review the will and determine if it is fair.

It is usually straightforward to determine who is a child of the deceased, but who qualifies as a spouse has been contested in many cases before the Court.

The definition of “spouse” in WESA includes a married couple or a couple who have lived together in a marriage-like relationship for at least two years. The spousal relationship is clear if two individuals are married and do not separate.

However, relationships can take many forms, and many couples choose not to marry. Couples may also live apart during their relationship for various reasons but still consider each other to be spouses.

Several factors are considered by the Courts to determine whether a spousal relationship existed with the deceased. These may include:

  • If the couple lived apart, why was this arrangement in place?
  • How did the couple spend their time together?
  • Did their friends/family consider the couple to be in a spousal relationship?
  • Did the couple support each other economically?
  • How long were they in a relationship for?
  • What was the intention of the couple with respect to their relationship? For example, were they exclusive, and did they intend to spend their lives together?

If your spouse has passed, and you wish to vary their will, you only have 180 days after probate is granted to start this claim. If you are curious about your status as a spouse, please contact one of our estate litigation lawyers for a consult.

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