Estates Law Case Comment: Boisvert Estate (Re), 2026 BCSC 195

Ordinarily, under section 21(1) of the Wills, Estates and Succession Act, S.B.C. 2009, c.13 (“WESA”), when a person dies intestate (without a will), leaving a spouse and children, the deceased person’s estate is divided as follows:

1. the surviving spouse receives the household furnishings and a preferential share of the estate of either $300,000.00 or $150,000.00, depending on whether the children are or are not the children of the deceased and surviving spouse, respectively;
2. the residue of the intestate estate, after satisfaction of the surviving spouse’s preferential share, is divided one-half to the surviving spouse and one-half to the children.

But what happens if the value of the estate is not large enough for the spouse to retain the spousal home without cutting into the children’s share of the estate?

For example: if a spousal home is worth $800,000.00, and the total net value of the intestate estate is $1,000,000.00, the surviving spouse would be entitled to receive $650,000.00, representing their $300,000.00 preferential share of the estate, plus half of $700,000.00. In that scenario, the spouse’s interest in the estate is insufficient to retain the spousal home.

The potential for such a scenario is particularly prevalent in places like Vancouver, where skyrocketing property values often mean that a spousal home is the primary (or only) material asset of many peoples’ estates.

Section 33 (‘Retention of spousal home’) of WESA provides one answer to this situation, but the provision was only considered by the Court for the first time very recently in Re: Boisvert Estate, 2026 BCSC 195.

Section 33 provides surviving spouses of an intestate estate with a means of securing vested title to their spousal home, while converting interests of the other intestate beneficiaries into registerable charges on the spousal home, which can be enforced at a later date. This provision is unique to British Columbia.

Ralph Amies, the surviving spouse of Kathryn Boisvert, deceased, filed this application in respect of his spousal home in Smithers, BC. Cory Goddard, the deceased’s daughter and administrator, opposed Mr. Amies’ application. At the time of the application, Mr. Amies had lived in the Smithers home for nearly four years following the deceased’s death.

In order to rely on s.33 of WESA, the applying spouse must satisfy the Court that:

1. they were and are ordinarily resident in the spousal home at the time of the deceased’s death;
2. the assets of the estate are not sufficient to satisfy the interest of all children, without disposing of the spousal home;
3. purchasing the spousal home under s.31 of WESA 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 children entitled to share in the intestate estate by having to wait an indeterminate amount of time to receive all or part of their share of the estate; and
5. the surviving spouse has resided in the spousal home for a sufficient period of time to establish a connection with it, or has a sufficient connection with the community or members of the community to warrant an order under s.33.

Section 33(1) of WESA

When these circumstances are present, the Court may make orders doing one or more of the following:

1. vesting the interest that the deceased person had in the spousal home in the deceased;
2. specifying an amount of money the surviving spouse must pay to the children towards satisfying the children’s interest;
3. converting the remaining, unpaid interest of the children into a registrable charge on title to the surviving spouse’s interest in the spousal home; and/or
4. determining the value of the registerable charge, including determining an interest rate for the amount to which the children are entitled.

Section 33(2) of WESA

The Court is also given discretion to make its order subject to any terms and conditions it considers appropriate (s.33(2)).

Subject to the Court’s direction otherwise, a registerable charge becomes due and payable, on the earliest of one year after the surviving spouse dies, one year after the surviving spouse stops living in the spousal home, or the sale of the spousal home. If a registered charge is not paid, the children can take any enforcement action that a mortgagee may take under the prescribed standard mortgage terms under the Land Title Act, R.S.B.C. 1996, c. 250 (s.34 of WESA)

In addition, under s.35(2), the children may apply to make a registered charge payable earlier in certain circumstances, such as where the surviving spouse fails to pay taxes or other charge against title to the spousal home, or takes steps which jeopardizes the value of the spousal home to such an extent that it no longer provides sufficient security for the amount secured by the charge.

In Boisvert, Madam Justice Hardwick undertook a fulsome analysis of the legislative history and purpose of s.33. In doing so, she concluded that, to determine the application, she was required to balance the interests of Mr. Amies, who had resided in the Smithers home for over 29 years against those of the children, who would not receive significant liquid assets from the estate until the home sold.

Justice Hardwick ultimately concluded that the appropriate remedy in the circumstances was an order vesting the Smithers home in the name of Mr. Amies, with a registerable charge in favour of the children.

Citing the Court’s broad discretion to craft the charge in a way that recognizes the parties’ respective interests, the Court found it appropriate to delay the enforceability of the charge for two years to give Mr. Amies time to get his affairs in order, taking into consideration that he had already been living there for over 3 years after Ms. Boisvert’s death. Justice Hardwick also ordered that the children’s charge accrued interest.

While Boisvert represents the successful use of s.33 by a surviving spouse to secure title to, and (temporary) continued residence in, a spousal home, the decision also underscores the importance of advance estate planning and having a will to avoid contentious litigation. That is, s.33 may be another arrow in the quiver of a surviving spouse who faces being removed from a spousal home, but that arrow is only necessary (and indeed available) in the case of intestate estates.

If you have any questions, please contact Matthew Nakatsu, or any member of our Wills, Estates and Trust team.