Canada: Wills, Estates And Succession Act (WESA)

In Force March 31 2014
Last Updated: June 4 2014
Article by Rose Shawlee


March 31 of 2014 ushers in a new era for Wills and Estates in BC, as the Wills, Estates and Succession Act takes effect. The legislation is better known by its acronym WESA.

Each province has its own laws in respect of Wills and Estates. While WESA brings BC more in line with some other provinces, each province continues to operate independently.

Prior to WESA, there were vast numbers of laws that collide to create the rules governing Wills and Estates and in British Columbia. Many of these hadn't been systematically updated for over fifty years. They therefore weren't cohesive and contained some concepts that didn't reflect contemporary values. Because there were so many different sources that formed the law in this area, it has been extremely difficult for non-lawyers to navigate (and even for the under-caffeinated lawyer). By consolidating the significant majority of the law under once piece of legislation, WESA aims to provide more accessible information to people.

As with any legislative changes, not everything is being heralded as a success, but there are certainly some key changes. This article will set out some of the aspects that will be, hopefully, of interest to most:

  • who is a 'spouse' and the effect of marriage on a Will
  • who can challenge a Will (wills variation issues)
  • intestacy
  • estate administration highlights

I - Marriage and Spouses

The concept of who is a spouse has been broadly updated to dovetail with other legislation and reflect modern Canadian society. A 'spouse' will include:

  • Married spouses
  • Common law spouses
  • Same-sex spouses

Just as importantly, WESA sets out when someone cease to be a spouse for the purposes of bringing an application to vary a spouse's Will. Who can apply to vary the distribution set forth in a Will is canvassed in more detail below, but importantly any spouse can challenge his/her spouse's Will. In BC, this led to scenarios where there are a multiple spouses claiming against a deceased's Will.

For example, where Mary and Scott are married but have been separated for fifteen years and each one also has a common law spouse after separation, under the pre-WESA scheme they technically have two spouses who can challenge their Wills: the married but separated spouse and the common law spouse. WESA tidies this up by stating that if married spouses separate they cease to be 'spouses' for the purposes of WESA (there can be exceptions if there is reconciliation). Therefore Mary and Scott would cease to be considered each other's spouses and the only spouse each would have at death is their common law spouse.

It's anticipated that documenting the end of the spousal relationship will be important in assisting spouses in minimizing (and hopefully avoiding altogether) litigation surrounding whether someone is or is not a spouse of someone who has died.

It's also a quirk of pre-WESA law that when two people marry, their Wills were revoked. This concept stems from an era where it was inconceivable that people would cohabitate prior to marriage, much less have made provision in their Wills for a spousal person other than one to whom they were married. This is therefore updated by WESA such that marriage will no longer revoke a Will.

That being said:

  • if you marry before WESA takes effect, your Will is still revoked and WESA does not revive a Will that was revoked by virtue of marriage; and
  • if your Will doesn't make reasonable provision for a spouse, your Will should be revised to reflect the new spousal relationship to manage the likelihood of a successful challenge to your Will.

Wills Variation

There are only two classes of people who can challenge a person's Will (meaning that they can apply to the Supreme Court of BC to have the terms of the Will varied in his or her favor): spouses and children. This is not new to WESA, and is carried over from the current legislation.

As mentioned above, WESA has introduced provisions that stipulate that married spouses who are separated cease to be considered spouses, and so cannot challenge each other's Wills.

'Children' includes natural and adopted children. There is no age requirement or dependency requirement, with the effect that adult, independent children can challenge a parent's Will. WESA introduces specific provisions addressing the rights of children conceived with assisted reproduction and surrogacy. 'Children' does not extend to step-children unless they have been legally adopted. One cannot contract out of the right to challenge a parent's or spouse's Will.

While this isn't a result of WESA, the scope of who is considered a child poses challenges for blended families. If, for example, Sarah and Graham marry and each has two children, Sarah's children can challenge her Will as can Graham, and Graham's children can challenge his Will as can Sarah. However, Graham's children cannot challenge Sarah's Will and Sarah's children cannot challenge Graham's Will. The effect is that blended families must balance legal estate obligations between spouses and children.

For blended families who join their families together, particularly when their children are quite young, it's common for the spouses to want to leave everything to each other and, alternatively, equally amongst all the children of the family unit because they consider themselves a single family. Consider how the wills variation issues could impact this:

  • if the surviving spouse later cuts out the deceased spouse's children from his/her estate, those children don't have an immediate statutory tool to recover their 'portion' of their parent's estate who passed first; and
  • if the surviving spouse remarries or enters into a common law relationship, that new spouse will have a claim on the surviving spouse's estate and the surviving spouse will need to balance this against any intention to provide for all the children of the family unit.

There is therefore considerable ongoing debate about the lack of improved treatment for blended families when it comes to wills variation matters, and careful planning continues to be necessary.


Intestacy is where a person dies without a Will; significant improvements have been made in respect of how assets will be distributed in these circumstances.

The two most notable changes under WESA are that a) the distribution between spouses and children is updated to reflect different divisions where the surviving spouse is not also the parent of the children of the deceased, and b) there is now a possibility that, in the absence of a Will, the government could receive the assets of an estate. The first change tries to balance the needs of spouses and children in blended families. The second change introduces, ironically, what was often commonly believed to already be the law.

While the distribution scheme on intestacy is more detailed than this article can capture, below are the highlights of the changes.



a) To spouse, if only a spouse.

b) To children, if no spouse.

c1) Where there is a spouse and one

child $65,000 to the spouse, and ½ of

the residue to the spouse and ½ to the

child; spouse entitled to household

assets and life estate in home

c2) Where there is a spouse and 2 or

more children $65,000 to the spouse and

1/3 of the residue to the spouse and

2/3 divided between the children; spouse

entitled to household assets and life

estate in home

a) To spouse, if only a spouse.

b) To children, if no spouse

c) Where there is a spouse and descendants,

household furnishings to spouse.

c1)Where descendants are those of both the

deceased and the spouse, $300,000 to

spouse. If not, $150,000 to spouse. The

spouse is entitled to ½ of the residue and the

descendants are entitles to ½ of the residue.

c2) Spouse may acquire spousal home

within 180 days of the Grant in satisfaction of

all or part of the spouse's entitlement.


h) To the government, subject to the Escheat Act.

Estate Administration Highlights

Estate administration is the process of dealing with a person's estate after death, including making an application to the Supreme Court of BC to acknowledge the Will and executor, or appoint an administrator where there is no Will. Where there is a Will, the process is commonly called the probate process. Where there is no Will, it's commonly called the administration process.

In either case, the person who steers the process is called the Personal Representative. This term includes both executors and administrators.

Here are some of the highlights of the changes WESA introduces to the estate administration process:

  • Standardized forms will be used for all probate and administration applications. The government's goal is to increase the ability of non-lawyers to use and understand these forms and the court process. We'll leave it to you to evaluate whether that's been successful.
  • Wills need to comply with WESA's signing and witnessing requirements to be valid (unchanged from the current legislation). WESA, however, now gives the Court discretion to recognize as valid a document that doesn't meet these requirements.

    This has several possible effects. On one hand, it will likely allow Wills to be treated as valid that weren't properly signed due to inadvertence or declines in health. For example, if I am ailing and I write up my Will but then before I can sign it I pass into a coma, this mechanism will now allow my estate to apply to the Court to have this Will recognized as legitimate even though it's not compliant with WESA's formal execution requirements.

    On the other hand, this means that personal representatives will have to be even more diligent in looking at the records of a deceased to determine if a document (electronic or hard copy) constitutes a testamentary record, and personal representatives may have to contend with people alleging certain records should override a valid formal Will.

    For example, even if I have made a valid Will, someone could show up with an email where I have set out that it is my intention to make certain distributions of my assets on my death and allege that the email should be treated as a testamentary record in lieu of my Will.

    What people communicate about their wishes on death will therefore become increasingly important, even casual communications. This could lead to increased litigation.
  • For a beneficiary to inherit under WESA, the beneficiary must survive the deceased by five days. Good drafting will usually include a longer period, such as thirty days, for certain types of beneficiaries.
  • The Court can correct errors in a Will where the Will doesn't reflect the deceased's intention, such as due to a drafting error. For example, if a Will says it is dividing an estate in four parts and then only deals with three of them, if there is clear evidence of what the intention of the deceased was, the Court will likely be able to 'fix' the Will to follow that intention for the fourth part.

One of the themes amongst WESA's changes to the administration of estate is that additional discretion is given to the Court. While this has some clear advantages, it will still be preferable to have well-ordered and documented affairs so that the discretion of the Court need not be relied upon to cure any problems; any application to the Court can be costly and time consuming, making prevention preferable to a cure.

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.

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.

In association with
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
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

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