One of the changes made in B.C.'s Wills, Estates and Succession Act (WESA)
(coming into effect 9 weeks from now, on March 31) relates to the
mandatory period that an estate executor must wait before
distributing assets. It looks innocuous, but the effects of this
change may come as a surprise to some people when encountered in
Currently, the only hold period restriction set out in section
12 of the Wills Variation Act (WVA). This
section says an executor of a will must not distribute estate
assets to beneficiaries until 6 months after the issue of a grant
of probate, unless they have consent of all persons entitled to
apply under the WVA, or a court order authorizing distribution.
Section 12 of the WVA was recently considered in the case of Stevens v. Wood Estate in which the
executor had distributed to beneficiaries prior to the expiry of
the hold period. The Court held that the appropriate remedy was to
require her to personally repay the distributed funds.
When WESA takes effect, section 12 of the WVA is replaced by
section 155 of WESA. The key changes are summarized in this
WVA Section 12
WESA Section 155
Applies only to executors of
Applies to administrators of intestate
estates and executors of wills
Hold period is 6 months
Hold period is 210 days
Requires consent only of persons
entitled to apply under the WVA, namely spouse and children of the
Requires consent of all beneficiaries
named in any will and consent of all next of kin
who would be entitled to a share in the estate if there was no will
(even if there is a will and they are not beneficiaries).
No extension of hold period if
litigation commenced (though executors generally would not
distribute if a WVA action was outstanding).
Hold period extended indefinitely if
estate litigation proceedings are outstanding.
The WESA provision extends the protection formerly given to
potential claimants under the WVA to essentially include all
persons who might wish to raise a claim about an estate, for
example a next of kin wanting to contest the validity of a will
based on undue influence. Therefore when beneficiaries want an
early distribution (as they tend to), the executor will need to
obtain consent from a broader group of people than the law formerly
required. In many circumstances it will be impossible or
impractical to get consent from all beneficiaries and all next of
kin, many of whom might be receiving no benefit and therefore may
not be inclined to co-operate.
This provision will be even more troublesome for executors in
cases where a grant of probate is not required. For example, if the
estate assets consist only of private company shares and personal
belongings, the assets can be transferred or sold without a grant
of probate (and without probate fees). However, if no grant is
obtained, the section 155 hold period will not begin to run. The
executor will have to choose between (i) applying for a grant
(paying probate fees) and then waiting 210 days, (ii) seeking all
required consents, or (iii) applying to the court for an order
It will be interesting to see how these new provisions end up
playing out in the context of estates later in 2014.
The content of this article is intended to provide a general
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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