Intestate Inheritance of a Family Home, the Court’s Interpretation of s. 33 of WESA

In Re: Boisvert, 2026 BCSC 195, Justice Hardwick writes the first judicial interpretation of section 33 of the Wills, Estate and Succession Act, SBC 2009, c. 13 (“WESA”) and offers a thoughtful interpretation in her decision. Section 33 of WESA allows a surviving spouse to remain in the spousal home under court defined terms. This blog post outlines the applicable WESA provisions and examines the issues that may arise when a surviving spouse asserts rights over a property after their spouse dies intestate.

Ms. Kathryn Boisvert (“Ms. Boisvert”) owned a property in Smithers B.C. valued at approximately $600,000.00. Although she was the sole registered owner, she had lived on the property with her statutorily defined “spouse”, Ralph Amies (“Mr. Amies”), for 29 years. Ms. Boisvert died intestate, leaving behind Mr. Amies, and her two children from a previous marriage.

Section 21 of WESA governs intestate succession and outlines how an estate is to be distributed when an individual dies without a will, leaving behind a surviving spouse and surviving children. Under subsection 21(5) and 21(6) of WESA, where the surviving children are not shared by the deceased and the surviving spouse, the spouse is entitled to the first $150,000.00 of the estate, plus 50% of any amount beyond $150,000.00. The remaining 50% is to be divided equally among the deceased’s surviving children. In this case, these subsections entitled Mr. Amies to $375,000.00, with the balance to be distributed between MS. Boisvert’s two children.

Ms. Boisvert’s primary asset was the property she shared with Mr. Amies, who was entitled to a majority share of the value of the property. This meant that Ms. Boisvert’s children would not be able to realize their portion of the estate unless the property that had been inhabited by Mr. Amies for 29 years was sold.

Under the Estates Act, the predecessor to WESA, surviving spouses were granted a life estate in the spousal home. This meant that descendants would have to wait until the surviving spouse’s death to realize their interest arising out of the property.

This changed with WESA. Section 31 of WESA now allows a surviving spouse to purchase the deceased’s interest in the home. As Mr. Amies did not have the means to purchase the property, he was unable to do so.  He sought an order under s. 33 of WESA to obtain a vested interest in the property and convert the descendants’ interests into a registrable charge against the property.

Justice Hardwick weighted these competing interests between Mr. Amies’ interests against the Descendants’ who would not receive liquid assets until the property was sold. Section 33(1) and (2) of WESA sets out:

(1) On application by a surviving spouse, the court may make an order under subsection (2) if

(a) the surviving spouse is ordinarily resident in the spousal home at the time of the deceased person’s death,

(b) assets in the estate are not sufficient to satisfy the interests of all descendants entitled to share in the intestate estate or that part of the estate that is to be treated as an intestate estate without disposing of the spousal home,

(c) the court is satisfied that purchasing the spousal home under section 31 would impose a significant financial hardship on the surviving spouse,

(d) the court is satisfied that, in all the circumstances, a greater prejudice would be imposed on the surviving spouse by being unable to continue to reside in the spousal home than would be imposed on the descendants entitled to share in the intestate estate or that part of the estate that is to be treated as an intestate estate by having to wait an indeterminate period of time to receive all or part of their share of the intestate estate, and

(e) either

(i)the surviving spouse has resided in the spousal home for a sufficient period of time to have established a connection to the spousal home, or

(ii)the surviving spouse has a sufficient connection with the community or members of the community in the vicinity of the spousal home to warrant an order under subsection

(2) The court may, subject to any terms or conditions the court considers appropriate, make an order doing one or more of the following:

(a) vesting the same interest in the spousal home in the surviving spouse that the deceased person had;

(b) specifying the amount of money the surviving spouse must pay to the descendants towards satisfaction of their interest in the estate;

(c) converting the remaining unpaid interest of the descendants in the intestate estate into a registrable charge against the title to the surviving spouse’s interest in the spousal home;

(d) determining an interest rate, as that term is defined in section 7 [interest rate] of the Court Order Interest Act, or at any other rate the court considers appropriate, for the amount the descendants are entitled to under paragraph (c) of this subsection;

(e) determining the value of the registrable charge referred to in paragraph (c) to include the principal amount owing to the descendants entitled to share in the intestate estate or that part of the estate that is to be treated as an intestate estate and the expected value of the future interest that will be earned under paragraph (d)

The Court assessed the legislation through a purposive lens and reviewed the applicable Legislative Hansard evidence and a B.C. Ministry of Justice memo, The Wills Estates and Succession Act Explained (the “WESA Memo”). The WESA Memo was particularly instructive in establishing the framework for when Section 33 should be applied. The WESA Memo identified several key conditions, including: (i) the deceased must have died intestate; (ii) the spousal home must not be held in joint tenancy; (iii) the relationship between the surviving spouse and the descendants must be such that they cannot resolve the inheritance on their own; (iv) the spousal home must be valued at more than $300,000.00 than all other assets combined; (v) and the surviving spouse must not have assets that can be used to make up any shortfall. It was thought to be unreasonable that the surviving spouse would need to liquidate RRSPs or other investments simply to remain in the home. At the same time, the framework sought to ensure the descendants’ interests were also respected.

In this case, the Court ultimately concluded that the prejudice suffered by the descendants to have to wait for their inheritance was outweighed by the prejudice suffered by Mr. Amies if he were forced to leave the property. Justice Hardwick crafted a reasonable decision that dictated the property’s interest be transferred to Mr. Amies, pursuant to Section 33 of WESA. The two children were granted a registrable charge under Section 34 of WESA in the amount of $225,000 with accrued interest as set out by the Court Order Interest Act, RSBC 1996, c.81. The discharge of that charge was structured to accommodate for potential changes in Mr. Amies’ circumstances but at the latest, was outstanding after 24 months following the decision.

Key Takeaways:

Justice Hardwick delivered a balanced decision that considered the needs of all affected parties. Her novel analysis of section 33 of WESA confirms the Court’s ability, empowered by WESA and informed by the WESA Memo and Hansard, to structure creative decisions with flexibility while still achieving a fair resolution. Re: Boisvert also serves as a reminder to clients about the importance of proactive estate planning to ensure their wishes are respected and to help prevent the family disputes that often arise when someone passes intestate.

The link to the full decision is available here.

This entry was co-authored by Jasmine Kang, April Wilkinson and Doris Vretenar. For more information on this and other similar topics, please contact the authors or anyone else from our Wills and Estates Team.