Canada: Special Release - Wills, Estates And Succession Act

British Columbia's new Wills, Estates and Succession Act (WESA) and accompanying new probate rules come into force on March 31, 2014. WESA replaces the Wills Act, the Estate Administration Act, the Wills Variation Act and the Probate Recognition Act, and modifies many other provincial statutes. WESA represents an attempt to consolidate and modernize BC's legal framework for estates and succession.

The following is a summary of some of the key changes that WESA will bring:

Increased court powers to give effect to intentions

  • The formal requirements for executing a will are largely unchanged, but WESA gives the court the ability to recognize a document as a valid will in situations where the formal requirements of WESA are not met.
  • Although a gift to a person who witnessed the signing of a will is still invalid, WESA allows the court to save the gift if it can be shown that the will-maker (formerly referred to as "testator" or "testatrix") intended to make the gift.
  • The court is also given expanded powers to correct clerical errors in a will, where the court determines the will is inconsistent with the will-maker's intention.

Updated rules for interpreting wills

  • WESA modifies the rules relating to failed gifts and clarifies what happens when a gift fails, for example because the recipient has died or refuses the gift.
  • WESA updates the rules relating to gifts of property that are subject to registered security interests. In certain cases, the recipient of the gift, rather than the estate, is required to pay the debt related to the property.
  • Under WESA, if a will-maker gifts certain property to a person in their will but the property is sold by someone acting under a power of attorney or similar power while the will-maker is alive but incapacitated, the beneficiary is entitled to be paid the value of the property.

Alteration and revocation

  • Before WESA, a will was revoked by the subsequent marriage of the will-maker unless the will was made in contemplation of the marriage. This rule is abolished under WESA.
  • WESA clarifies that a gift to a spouse is revoked when a spousal relationship ends, not only in cases of divorce but also when a common law relationship ceases.
  • Before WESA, most handwritten or other informal changes to a will were not valid. WESA allows a court to validate the changes if the will-maker's intention to make the change can be proven. Conversely, WESA allows a court to validate otherwise ineffective attempts to destroy a will if it can be proven that the will-maker intended to revoke the will.

Challenges to wills

  • WESA introduces a new procedure for filing disputes with the court. A challenge to a will can be made by filing a notice of dispute. Once a notice is filed with the court, it expires after one year and cannot be renewed without leave of the court.
  • Before WESA, a person alleging that a will resulted from undue influence placed on a will-maker had the onus of establishing undue influence. WESA may shift the burden of proof in situations where there is a potential for the will-maker to be dependent on, or dominated by, another person.
  • WESA incorporates the provisions of the Wills Variations Act without significant changes.

Probate process

  • New probate forms and rules have been introduced to accompany WESA. An attempt has been made to streamline the new forms to allow for easier use by lay applicants.
  • The new rules require notice of an application for a court grant to be sent to interested parties 21 days before the application is made. This allows parties a chance to formally respond to the application.
  • The new rules allow the possibility of planning to reduce probate fees by using two wills – one to be submitted to probate and a second to deal with private company interests and other assets not requiring probate.

Survivorship rules

  • Before WESA, when two people died together and it was not possible to tell who died first, the legal presumption was that the younger survived the older. If they were a couple, this often meant that all the assets would be distributed to the estate of the younger person. Under WESA, each person is deemed to survive the other, and joint assets are deemed to be held in common. The result is that the couple's assets are administered as two separate estates, either under their wills or on intestacy.
  • WESA also introduces a general 5 day survivorship rule. If someone does not survive a will-maker by 5 days (or any longer period stated in the will), they are deemed to have died before the will-maker.

Intestacy rules

  • When a person dies intestate (without a will), WESA increases the preferential share that a surviving spouse is entitled to from $65,000 to $300,000 ($150,000 if the deceased leaves descendants who are not common to the surviving spouse).
  • Before WESA, the spouse was entitled to a life interest in the matrimonial home. Under WESA, the spouse will instead be given a first right to purchase the home at fair market value.
  • If the deceased leaves surviving children and a spouse, WESA always gives the children a 50% share of the estate after the preferential items described above. Before WESA, the children would receive 66% of the balance if there were more than two of them.
  • WESA's distribution scheme in estates where there is no surviving spouse or children has also been modified.

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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