The new statute Wills, Estates and Succession Act
("WESA") will come into force on March 31, 2014.
WESA is going to have a profound impact on succession law,
including the law governing survivorship.
Under the soon-to-be old law, in a common accident where it is
impossible to tell who died first, the law arbitrarily presumed
that the older person has died before the younger person. This
presumption can cause an unfair result. For example, if a couple
died in a plane crash, which made it impossible to determine who
died first, the old law would presume that the younger spouse
survived the older spouse. This means that the younger spouse's
heirs or beneficiaries may end up inheriting both the younger
spouse's estate and a portion of or even all of the older
WESA abolishes that arbitrary presumption. Under
WESA, in a common accident where it is impossible to
determine the sequence of death, each person is presumed to have
survived the other. As such, in the same example, for the purpose
of the wife's estate, the wife is deemed to have survived the
husband (the husband is deemed to have predeceased the wife for all
estate purposes). For the purpose of the husband's estate, the
husband is deemed to have survived the wife (the wife is deemed to
have predeceased the husband for all estate purposes). The result
is that their respective estates will be passed to their respective
heirs or beneficiaries in accordance with the intestacy rules or
their respective Wills. Any assets the couple held as joint tenants
would be deemed to be held instead as tenants in common upon the
occurrence of such a common accident.
WESA also adopts a mandatory five-day survivorship
rule. This means that if a person fails to survive the deceased by
five days, then that person is deemed to have died before the
deceased. Using the same example, if the wife died instantly at the
plane crash, but the husband survived the wife for only 4 days and
died in the hospital, then for the purpose of the wife's
estate, the husband is still deemed to have died before the wife.
This five-day survivorship period is mandatory under WESA.
A will-maker cannot shorten that period in the Will, but can expand
it. The normal practice is to have a 30-day survivorship period,
which is still advisable under WESA.
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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