The British Columbia Law Institute (BCLI), formerly known as the
Law Reform Commission of British Columbia, is a not-for-profit law
reform agency that works to improve and modernize the law. BCLI has
had significant influence on important changes in the law in many
different areas. Most recently, many of its recommendations in
areas of family and estates law have been accepted by the
Provincial government and have resulted in legislative changes.
The report was the final stage of the Rationalizing and
Harmonization of BC Common-Law Tests of Capacity Project. The
project's purpose was to make recommendations related to mental
capacity required to enter into certain transactions or
relationships. The report contains the project's final
recommendations for reform.
The report focuses on the elements of tests of capacity that
have been developed by the courts over the years. These tests are
known as "common-law tests of capacity."
The report does not recommend making substantive changes to
common law tests of capacity to make a beneficiary designation, to
marry, to form the intention to live separate and apart from a
spouse, or to enter into an unmarried spousal relationship. The
report does, however, make some of the following recommendations
Capacity to Make a Will
While the report does not propose any reforms to the test of
capacity to make a will, it proposes a legislative presumption of
capacity to make a will. In other words, until the contrary is
demonstrated, every will-maker would be presumed to be capable of
making, changing, or revoking a will.
Wills for Individuals Who Lack Testamentary Capacity
Perhaps most interestingly, the report recommends that British
Columbia enact legislation creating a court-based procedure to
allow people with diminished capacity to make a will. The
recommended procedure would be modeled on existing statutory-will
procedures in the United Kingdom and Australia.
Certification of Testamentary Capacity Before the Death of the
In certain American states, it is required to make an
application to court for a declaratory order that a person has the
mental capacity to make a will at the time when the will is
executed. The report does not recommend that this procedure be
implemented in British Columbia. The report states that this
procedure would be of limited utility, as it has not proved to be
significantly effective in stemming estate litigation in the
handful of American states that have adopted it.
Capacity to Make a Gift
The report recommends adopting a test of capacity to make an
inter vivos gift (i.e. a gift that is made during a
person's lifetime) that is similar to the test of capacity to
make a will.
Capacity to Nominate a Committee
A committee is someone who will make decisions on the
person's behalf if the person is ever found to be incapable of
managing his or her person or affairs. The report recommends for
British Columbia to enact legislation that provides the test of
capacity to nominate a committee under section 9 of the
Patients Property Act or a guardian under section 8 of the
Adult Guardianship Act to be the same as the test of
capacity set out in section 10 of the Representation Agreement
Capacity to Retain Legal Counsel
The report proposes a number of reforms to help improve access
to legal services in situations where a person's mental
capacity is at issue and in creation of a representation
This report is submitted to the Provincial government for review
and consideration. While it may result in changes to existing law,
we do not expect changes to occur any time soon.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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It is not uncommon for parents to provide monetary gifts to their adult children. Parents may wish to help their child with a down payment on a property, or help pay out their child's existing mortgage.
On March 31, 2014, BC's new Wills, Estates and Succession Act1 ("WESA") will come into force. WESA introduces new protections for beneficiaries of estates that are in danger of being disputed or deemed ineffective by a court.
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