"The law of succession is among the most archaic areas of private law, and British Columbia legislation dealing with various aspects of succession is highly fragmented, spread throughout a forest of statutes."
Wills, Estates and Succession,
A Modern Legal Framework,
B.C. Law Institute, 2006
Those words were written nearly a decade ago and described, in brief, the complicated and confusing legal world of wills, estates and succession. The Report from which that quote comes recommended a wholesale overhaul of this area of the law. The B.C. Legislature, various interest groups and the legal community have been working on such a revision to this area of the law since. It is going to be proclaimed into law today (March 31, 2014) and is called the Wills, Estates and Succession Act, 2009 S.B.C. c. 13 ("WESA").
While this new legislation makes many changes and updates to this area of the law (far too many to cover in a short blog), it might be helpful as a start to highlight some of the significant features. So, here are ten things WESA does and does not do to change the law in B.C.
- WESA changes much of the language used in the estate area. For example, rather than describing a person who makes and signs a will as the "testator" or "testatrix," they are now called the "will-maker." The term "descendant" is introduced to describe all lineal descendants through all generations, a concept previously described as "issue." The term "spouse" is broadened to include couples in marriage-like relationships of at least two years duration, regardless of gender.
- WESA lowers the age at which a person can legally make a will from 19 to 16 years of age. This does away with the anomaly of persons aged 16 to 19 being unable to make a will, unless they were married in which case they could. However, the witnesses to a will must still be 19 or older.
- The scheme for the distribution of an estate when there is an intestacy (i.e., no will) has changed significantly. The spousal share has increased to include all household furnishings and the first $300,000 of assets. If all the descendants were born to the spouse and the deceased, then the spouse also receives half of the residue of the estate. If not, then the initial spouse's share is reduced to $150,000 and half the residue. The concept of a "life estate" in the spousal home is gone, replaced by a surviving spouse's ability to buy the deceased's interest in the spousal home for fair market value within 180 days of the representation grant (formerly grant of probate, etc.).
- WESA also introduces the concept of parentelic distribution in cases of intestacy. This concept is used where a deceased has no spouse or children. It involves tracing the lineal descendants through parents, grandparents or great-grandparents. The estate is distributed in pro-rated shares among those who qualify, but only as far as the forth degree. If there is no one alive fitting that description, then the estate passes to the government.
- There is no longer a presumption that a proposed administrator must post security when applying for letters of administration. Security will only be necessary where there are minor or incompetent beneficiaries.
- The interpretation of wills, and particularly errors or ambiguities in them, has always caused difficulty. Previously, the courts could only rely upon very limited evidence to do so and had a narrow discretion to fix problems. Under WESA, the courts have been provided with a wider discretion to consider a variety of documents as testamentary instruments even if they may not meet the formal requirement of a "will". Similarly, the courts may also look to a wider range of records, documents or writings to assist in interpreting a will. The court also has wider powers to rectify errors or misunderstandings in a will.
- Similarly, WESA broadens the ability of the courts to give effect to a will even though the formal requirements of its execution may not have been met. Previously, perfection was required and there was nothing the courts could do to rescue a will that had been improperly executed.
- There is no real change to the law relating to a wills variation claim. The only real changes are procedural. Where a wills variation claim had to be commenced within six months of the grant of probate, that limitation period is now 180 days. In addition, a plaintiff must now serve the executor with the claim within 30 days of commencing such a claim.
- The law of estates is filled with legal presumptions.
WESA does away with some of them. Three such presumptions
that no longer apply (unless there is a contrary intention in the
will) are the presumption that:
- A gift made to a child of the will-maker during the will-maker's lifetime is an advance on the child's inheritance to be set-off against a gift in the will;
- If a will-maker made a gift to a creditor in the will in the amount of the debt, the debt is satisfied; and
- If a will-maker made a gift to a person during their lifetime, then any legacy in the will of the same amount is revoked.
- As a result of the changes to estate administration and probate under WESA, an entirely new set of probate rules will come into force on March 31, 2014. The current probate rules (Rule 21-4 and 21-5) will be replaced by Rule 25-1 to 25-16. These rules are quite different and set out the procedures for dealing with applications for probate and the administration of estates. They also set out the process for bringing issues dealing with estates to court for resolution.
While there is sure to be a period of time during which the public, lawyers and the courts will be getting use to WESA, its arrival has been long anticipated and will make dealing with wills, estates and succession issues easier for everyone.
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.