I have briefly outlined a few of the changes that came into force below.
If you die without a will
There are new "intestate succession" rules now, meaning if you die without a will:
- The household furnishings and the first $300,000.00 go to your spouse (or spouses!) if you share children, or the first $150,000.00 to your spouse if the deceased had children from another relationship (ie. blended families);
- Anything remaining is split 50% to the Spouse(s) and 50% to the deceased's decendants;
- If there are no children, everything goes to the Spouse(s).
- If there is no spouse, everything to the children.
- If there is no spouse and no children, then everything to: 1) parents; 2) siblings; 3) grandparents; 4) descendants of grandparents;
- There is a cut-off at the "forth degree of kinship" (ie. cousins, grand-nieces and –nephews)
- There is no more automatic 'life estate' in the spousal home, but rather an option, exercisable within 6 months, for the surviving spouse to take the house.
- The estate cannot sell a spousal home until that 6 month period has passed, unless there is consent or pressing debt.
If your will isn't perfect
You can apply to the court to have a "testamentary record", which includes data stored electronically, declared a valid will. We will have to wait and see what the courts will and will not accept as "testamentary records". The court also has the power to "rectify" a will that they believe does not carry out the will maker's intention due to an error, omission or misunderstanding of the will maker's instructions.
Common Law Relationships
A person is a "spouse" if you have lived together in a "marriage like" relationship for 2 years.
You cease being a common law spouse when you separate (with the intention to terminate the relationship). If you are married, the separation rules under WESA are still unclear. It could be interpreted that you cease being a spouse on separation, or after 2 years of separation. There are amendments to the legislation that have not yet been declared in force which may clarify this issue.
Under the old law, a marriage would revoke a will and dissolution of marriage would revoke any appointment or gift to a spouse. Under the new law, a marriage no longer revokes a will. If your marriage occurred before March 31, 2014, any will you had was revoked by that marriage. If you were married after March 31, 2014, your will is still in effect.
If you are under 19
The minimum age to write a will has been lowered to 16 years, however witnesses must still be 19 or over.
If you were born, or conceived, after your parent's death
If you were conceived before a parent's death, but born after, you will inherit.
If you were artificially conceived after a parent's death, you may inherit if the estate has notice, within 180 days of a grant of probate, of the surviving spouse's intention to use reproductive material and the child is born within 2 years of the death.
If you and your spouse die "simultaneously"
If there is an accident and it is unclear who died first, each person is deemed to have survived the other. Unless a contrary intention is drafted into the will, joint tenancies will be severed into tenancies in common, and each party's estate will pass through their respective wills and will likely require probate.
If you die with a mortgage
Gifts of property under WESA will pass subject to any registered security, unless a contrary intention is drafted into the will. This includes mortgages on real property and purchase money security interests in personal property.
If you were unduly influenced
WESA has reversed the burden of proof in these cases. Once undue influence is alleged, meaning someone claims the will maker was coerced, the person wishing to uphold a gift has to defend against those allegations. Previously, it was the accusing party who had to prove undue influence.
You can use a will for a revocable designation, and an attorney acting under a Power of Attorney can now replace a designation with the same beneficiary on a similar instrument or financial product. Designations in an invalid will can be valid, but not in a revoked will.
If you want to vary a will
Spouses and children may still apply to vary a will that does not make "adequate, just and equitable" provision for them. However, you now have 210 days (as opposed to 6 months) from the Grant of Probate to serve the executor with your claim.
Probate Fees remain the same
No probate fees on estates worth under $25,000, gross. Probate fees on the gross value of the estate between $25-50K is taxed at approximately 0.6%, the gross value of the estate over $50K is taxed at approximately 1.4%. However, there is no longer a "small estates" exemption for the Probate requirement.
It is always a good idea to review your will occasionally. With some of the changes brought about by WESA, now is a great time to sit down with your lawyer to make sure your wishes will still be upheld as you intended.
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.