Canada: How WESA Will Impact Your Will In BC

Last Updated: March 27 2014
Article by Marie-Claire Dy

Over the past few years, the BC legislature has overhauled British Columbia's laws regarding estate planning. In September 2011, the heavily revised Power of Attorney Act and Representation Agreement Act became effective, providing the province with modernized legislation for incapacity planning. In the same vein, the Wills, Estates and Succession Act ("WESA") will revise British Columbia's wills and estates legislation to bring it into the 21st century and will consolidate it under a single statute.

WESA will be effective on March 31, 2014. On the same date, the Wills Act, the Estate Administration Act, the Wills Variation Act, and the Probate Recognition Act will all be repealed. This newsletter will highlight some of the major changes in WESA and, in particular, those changes that could impact wills executed before WESA comes into force.

Effect of marriage on a will

Under the Wills Act, if a person signed a will before they were married, that will was automatically revoked on their marriage unless the will included a clause stating that it was made in contemplation of the will-maker's impending marriage. Under WESA, however, wills will no longer be revoked by marriage. However, we recommend that wills be reviewed whenever a major event, such as a marriage or birth of a child, occurs in a person's life. It should also be noted that if a will was revoked because of marriage before WESA became effective, it will remain revoked under WESA.

Gifts by attorneys

WESA introduces rules relating to gifts made by a person appointed as an attorney under a power of attorney. If the attorney gives away property that is the subject of a specific gift under a person's will, then the beneficiary under the will will be entitled to claim a gift equal to the value of original gift on the date the original gift was given away. This will apply unless there is evidence that the will-maker authorized or intended to make such a gift during their lifetime and therefore leave nothing to the beneficiary under the will. As with many of the WESA changes, a will-maker can avoid this section by stating in their will that this provision does not apply.

Presumption of death

Over the years, case law and legislation have developed to deal with circumstances where a will-maker and a beneficiary died at the same time or in circumstances where it could not be determined which person died first. The old regime dealing with this was relatively simple. If a will-maker and a beneficiary died at the same time or in circumstances where it could not be determined which person died first, then the older person was deemed to have died first. Under WESA, if a will-maker and a beneficiary die in those circumstances or within five days of each other, the beneficiary is deemed to have predeceased the will-maker for the purposes of interpreting the will-maker's will.

WESA also changes the way in which ownership of jointly owned property passes where the owners die at the same time, in circumstances where it cannot be determined which owner died first or within five days of each other. In the past the younger owner was deemed to have survived and that person's estate received all of the jointly owned property. Under WESA, however, the joint ownership is severed and each owner's estate receives a 50% interest in the jointly owned property as a tenant in common.

Spousal disinheritance

Under the Wills Act, a person would be automatically disinherited from their spouse's will if they divorced their spouse, their marriage was annulled by the court or if there was a judicial separation. However, there was no automatic disinheritance of common-law spouses or in circumstances where the courts were not involved in a marital separation. Under WESA, common-law spouses will be automatically disinherited when the relationship ends and married spouses will be disinherited if: (i) the spouses live separate and apart for at least two years and at least one of them has the intention of living separate and apart permanently; or (ii) the spouses "separate" under the Family Law Act. Even if the spouses subsequently reconcile, reconciliation does not revive the gift provided under the will unless specifically addressed in the will. It should be noted that Bill 14 (which was introduced earlier this month) will amend when spousal relationships end and will allow for reconciliation within one year of separation.

Wills variation provisions

We had hoped that the Wills Variation Act would be substantially amended when WESA was enacted. Unfortunately, this was not the case. This means that spouses and children, regardless of whether they are adults or minors, of a will-maker continue to be entitled to challenge the will-maker's will if they believe they have not been adequately provided for in the will. No additional guidance with respect to the application of these provisions was provided in WESA.

Multiple wills

In some parts of Canada, multiple wills have been used as a means of limiting probate fees. Under this strategy, all of the assets that are likely to require probate before they can be transferred to the beneficiaries will be distributed under one will and the assets that do not require probate to be transferred will be distributed under another will. While multiple wills have been used in the past to deal with assets outside of British Columbia and to allow for probate planning in other jurisdictions, there has been much debate over whether it was possible to use multiple British Columbia wills to reduce probate fees. However, it appears that WESA will allow BC residents to use multiple wills to minimize probate, provided that different executors are used for each will. It is important to note that there are certain limitation periods, such as the limitation period for making claims under the Wills Variation Act (and the equivalent provisions under the WESA), that are based on the date a will is probated. If a will is never probated, those limitation periods will never start to run.

In light of the numerous changes that WESA will make to wills and estates law in British Columbia, we recommend that wills executed before March 31, 2014 be reviewed to ensure that WESA does not impact the will in a way that would be contrary to the will-maker's intentions.

About Dentons

Dentons is a global firm driven to provide you with the competitive edge in an increasingly complex and interconnected marketplace. We were formed by the March 2013 combination of international law firm Salans LLP, Canadian law firm Fraser Milner Casgrain LLP (FMC) and international law firm SNR Denton.

Dentons is built on the solid foundations of three highly regarded law firms. Each built its outstanding reputation and valued clientele by responding to the local, regional and national needs of a broad spectrum of clients of all sizes – individuals; entrepreneurs; small businesses and start-ups; local, regional and national governments and government agencies; and mid-sized and larger private and public corporations, including international and global entities.

Now clients benefit from more than 2,500 lawyers and professionals in 79 locations in 52 countries across Africa, Asia Pacific, Canada, Central Asia, Europe, the Middle East, Russia and the CIS, the UK and the US who are committed to challenging the status quo to offer creative, actionable business and legal solutions.

Learn more at

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. Specific Questions relating to this article should be addressed directly to the author.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
23 Oct 2018, Other, Toronto, Canada

Dentons and SheEO are coming together for an evening of #radicalgenerosity on October 23, 2017. Meet Vicki Saunders, Founder of SheEO, and learn about how SheEO is changing the landscape for female entrepreneurs.

23 Oct 2018, Seminar, Montreal, Canada

Dentons is pleased to invite you to join us for a breakfast seminar as part of the Les Matinées Dentons series on issues relevant to you and your business.

24 Oct 2018, Other, Toronto, Canada

If you build it, claims may come. Join the Dentons Construction group for breakfast and an informative discussion on current topics in construction law.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions