By Polly Storey and Stephanie Zhang

More than a decade after the Wills, Estates and Succession Act came into force, courts in British Columbia are still interpreting some provisions for the very first time.

In Re: Boisvert Estate 2026 BCSC 195, a recent decision of the Supreme Court of British Columbia, Justice Hardwick had an opportunity to consider, interpret, and apply s. 33 of the WESA, a unique provision which allows the Court to balance the interests of a surviving spouse to remain in their home and the interests of other family members in receiving their inheritance.

Inheritance Without a Will and the Spousal Home

Where someone dies without a Will, the intestacy rules will dictate how their estate is shared amongst their surviving family members. Unlike when someone leaves a Will, the Court does not have the ability to vary how the estate is shared based on, for example, the strength and quality of the relationships between the deceased and various family members or the relative financial need of the different surviving family members. Instead, legislation dictates how an estate is divided.

In British Columbia, particularly in and around the Lower Mainland, it is not uncommon that a person’s most valuable asset is their home. Under the previous legislation, if someone died without a will, the surviving spouse was entitled to remain living in the spousal home for their lifetime.

When the Wills, Estates and Succession Act came into force in 2014, however, this entitlement was not brought forward. Instead, the surviving spouse has the right to purchase the spousal home, if they are able to do so. If they cannot, the surviving spouse can apply to Court under s. 33 of the Wills, Estates and Succession Act for an Order transferring the Estate’s interest in the spousal home to them. If the Court decides to grant such an Order, the Court can convert the interests of the other descendants of the deceased person into a “charge” to be registered with the land title office. Subject to the terms crafted by the Court, the descendants can then enforce their interest against the home in the same way as a secured lender or creditor.

In Boisvert Estate, the Court had the opportunity to consider and apply this provision for the first time.

Ms. Boisvert and Mr. Amies

In 2022, the deceased, Ms. Boisvert, died without a will. Ms. Boisvert was survived by her common law spouse of almost 25 years, Mr. Amies, and her two adult children from a previous relationship (the “Descendants”).

Ms. Boisvert and Mr. Amies were people of modest means. During her lifetime, Ms. Boisvert struggled with alcohol addiction. There were long periods of time when Ms. Boisvert did not work. Mr. Amies cared for Ms. Boisvert when she was in ill health, and supported the couple’s life by working at various mechanical and labour jobs.

The Home and Ms. Boisvert’s Estate

Ms. Boisvert and Mr. Amies lived for 25 years in a home located on a rural acreage in Smithers, British Columbia (the “Smithers Home”). While Mr. Amies had contributed to the Smithers Home over the years, the property was registered in Ms. Boisvert’s sole name.

The Smithers Home was essentially the only asset in Ms. Boisvert’s Estate. On Ms. Boisvert’s death, the Smithers Home was valued at approximately $600,000.

As Ms. Boisvert died without a will, her Estate fell to be divided according to the intestacy rules. According to these provisions, using the value of the Smithers Home, Mr. Amies was entitled to inherit $375,000, as the surviving spouse, and the Descendants were entitled to receive $225,000 ($112,500 each).

Options for Mr. Amies

Mr. Amies did not have the financial means to buy the Smithers Home. Mr. Amies had RRSPs of about $100,000 and made about $20,000 per year.

Mr. Amies therefore applied for an Order under s. 33 of WESA. He sought an Order transferring the Estate’s interest in the Smithers Home to him. The Descendants opposed Mr. Amies’ application.

A Case of First Impression: Section 33 of the Wills, Estates and Succession Act

At the outset, Justice Hardwick observed that s. 33 of WESA had not yet been considered by the Court. In addition, there were no similar provisions in other jurisdictions that the Court could look to in order to guide the interpretation of the legislation. As a result, the judge turned to a publication by the British Columbia Ministry of Justice entitled, “The Wills Estates and Succession Act Explained” (the “WESA Memo”) to determine the purpose of s. 33 and guide her analysis.

Balancing Hardship and Inheritance

According to the WESA Memo, s. 33 is intended to allow the Court to balance the interests of the surviving spouse and other descendants of a deceased person.

Section 33 address situations where there would be hardship for a spouse to try to purchase the spousal home or to be required to leave the spousal home. In such circumstances, the Court can make an Order which allows the spouse to remain living in the home and which essentially places the other descendants in the place of “lender”, with their interest being secured through registration of a charge on title to the home.

The WESA Memo provides some guidance on what may constitute hardship to the surviving spouse. If the surviving spouse has assets of their own, for example, they should not have to use their assets to ‘pay out’ the other descendants where to do so would unfairly prejudice the spouse. For instance, if the surviving spouse has RRSPs, they should not be required to use all of their RRSPs to stay in the family home. It may be reasonable, however, for the spouse to use some of their assets so that the other descendants do not have their inheritance delayed indefinitely.

Requirements for Section 33

For s. 33 to be available, the following requirements, set out in s. 33(1) of the Wills, Estates and Succession Act, must be established:

1. the surviving spouse must have been ordinarily resident in the spousal home at the time of the deceased’s death;
2. the estate assets must not be sufficient to satisfy the interests of all descendants without selling the spousal home (i.e. there are not enough other assets to ‘pay out’ the interests of the other descendants);
3. purchasing the spousal home would impose a significant financial hardship on the surviving spouse;
4. greater prejudice would be imposed on the surviving spouse by being unable to continue residing in the spousal home than would be imposed on the descendants by having to wait to receive all or part of their inheritance; and
5. either (a) the surviving spouse has resided in the home for a sufficient period of time to have established a connection to the home; or (b) the surviving spouse has a strong connection with the community in the vicinity of the home.

If the evidence establishes all of these requirements, then the Court has discretion to make an Order under s. 33. The Court can make an Order for one or more of the following, on such terms as the Court considers appropriate:

1. transferring the deceased’s interest in the home to the surviving spouse;
2. specifying the amount of money the surviving spouse must pay to the children;
3. converting the remaining unpaid interest of the children into a registrable charge against the home;
4. determining an interest rate for the amount the children are entitled; and
5. determining the value of the registrable charge and the expected value of the future interest that will be earned.

Mr. Amies and the Smithers Home

The judge found that an Order transferring Ms. Boisvert’s interest in the Smithers Home to Mr. Amies, subject to a registrable charge in favour of the Descendants, appropriately balanced the parties’ interests.

Mr. Amies had lived at the Smithers Home for almost three decades. In addition, it would cause Mr. Amies financial hardship if he were required to purchase the Descendants’ interests. Even if Mr. Amies used all of his RRSPs, which the WESA Memo expressly said he was not required to do, he would not have sufficient funds to buy out the Descendants’ interests. In addition, his circumstances were such that he would not likely qualify for any significant amount of financing through a bank or other lender.

The judge also found that Mr. Amies would suffer greater prejudice by having to leave the Smithers Home than the Descendants would face if they were required to wait to receive their inheritance. While Mr. Amies’ share of the sale proceeds from the Home, if sold, may be sufficient for him to acquire a different residence, the Smithers Home had been his home for many years and was situated on a large lot in a private setting.

Terms of Order: Balancing the Interests

The judge then considered the terms upon which to make her Order.

As Ms. Boisvert died in 2022, Mr. Amies had already had the benefit of living in the Smithers Home for 4 years. The judge therefore decided to grant a registrable charge in favour of the Descendants for the full value of their inheritance ($225,000), and to order that this charge would become enforceable on the earlier of 2 years from the date of the judge’s decision, 12 months from the death of Mr. Amies’ death or vacating of the Smithers Home, or the sale of the Smithers Home.

This Order, the judge noted, gave Mr. Amies a 2-year grace period. Mr. Amies had time to consider selling other assets or trying to find a co-borrower to secure financing to remain in the Smithers Home. When the charge became enforceable, the Descendants would have the same enforcement rights as mortgage lenders, including foreclosure.

The judge also noted that the Descendants still had options open to them. They could, for example, try to sell their charge to a third party, though it is not clear how much a third party would be interested in paying. The Descendants could also consider negotiating an agreement with Mr. Amies. They could consider seeking a payment plan with Mr. Amies, such that they would receive some payment on account of their interest sooner and Mr. Amies could remain in the Smithers Home for longer.

A Flexible and Balanced Approach

Boisvert Estate is an important decision. In addition to being a case of first impression, and offering guidance about the novel framework created by s. 33, Boisvert Estate provides an example of how the Court may tailor an Order to mitigate the harsh effects that the intestacy rules may have on a surviving spouse.

Boisvert Estate also serves as an important reminder regarding the importance of making a Will. Had Ms. Boisvert made a Will leaving the Smithers Home to Mr. Amies, or allowing him to reside there for his lifetime or a period of time, her surviving spouse would not have been faced with the prospect of having to leave his home of almost 30 years. While the Descendants may have applied to vary that Will, the Court would have had discretion regarding the amount of the Estate to be provided to each person, having regard to factors such as financial need and the parties’ relationships.

For assistance or advice regarding your estate administration or planning mater, please contact Polly Storey or another member of Clark Wilson LLP’s Estates & Trusts Practice Group.