Canada: Transitional Rules For The Wills, Estates And Succession Act

Last Updated: July 22 2014
Article by Scott Kerwin, Tamara G. Wong and Peter Glowacki

Most Read Contributor in Canada, September 2016

The Wills, Estates and Succession Act ("WESA") came into force on March 31, 2014. The WESA is both a consolidation and a substantial overhaul of British Columbia's legislation relating to wills and estates. Amendments to the Supreme Court Civil Rules also came into effect on March 31 introducing new Probate Rules, and procedures and forms for estate administration and probate matters.

Grants of probate and administration made before the WESA came into force are deemed to have been granted under WESA, and remain fully effective. The WESA also contains transition rules that determine whether the new legislation applies to an estate or particular issues arising in the administration of an estate. This bulletin will provide a summary of such rules.

When Does the WESA Apply?

Whether the WESA applies to an estate, or a particular issue relating to an estate, will depend upon factors such as the date of death, whether the person died testate or intestate, and the date of the will.

  • In cases of intestacy, the WESA applies if the deceased died on or after March 31, 2014. If the death occurred before March 31, 2014, then the intestacy regime found in the former Estate Administration Act would apply.
  • If the person died before March 31, 2014 leaving a will, the former legislation would apply to issues such as the validity of the will. New tools found in the WESA such as the expanded rectification power, and the ability of the Court to admit documents to probate even though the formalities had not been followed, would not be available.
  • If the person died on or after March 31, 2014 leaving a will, the WESA would generally apply regardless of when the will was made. Provisions of the WESA, such as the rectification power and the curative provisions, apply regardless of when the will was made. However, these special rules apply:
    • A will made before March 31, 2014 that would have been valid under pre-WESA legislation, but would not be valid under the WESA, remains valid.
    • A will made before March 31, 2014 that would have been invalid under pre-WESA legislation, but would be valid under the WESA, is not valid.
    • A will revoked by operation of law prior to March 31, 2014 is not "revived" by the WESA. This situation would most often arise in the situation of a will-maker marrying after the date of the will. Under the former Wills Act, the will was revoked by operation of law. The WESA removes this provision. However, a will that had already been revoked by operation of law prior to March 31, 2014, due to a subsequent marriage, is not revived by the coming into force of the WESA.
  • Section 47 of the WESA introduces changes to how certain debts of the will-maker, known as "purchase money security interests", are treated. This provision only applies to wills made on or after March 31, 2014.
  • The comprehensive new regime for benefit plans contained in the WESA apply to beneficiary designations by a plan participant, if the participant dies on or after March 31, 2014, regardless of when the designation was made.
  • The procedures contained in the new Probate Rules must be followed for all applications to the Court after March 31, 2014, regardless of when the Deceased died or the date of any will.  However, certain changes to application procedures – such as advertising for creditors – depends upon the date of death. If the Deceased died before March 31, 2014, the method of advertising for creditors under the Trustee Act must be followed, whereas the new simplified procedure found in the WESA only applies if the Deceased died after March 31, 2014.

Judicial Application of the WESA and the Probate Rules

How the WESA will be interpreted and applied by the Court remains to be seen. The first substantive decision concerning either WESA or the new Probate Rules was released on July 7. In the case of Re Davies Estate, 2014 BCSC 1233, the Court rejected an application for an estate grant on the basis that the applicant had not followed the new 21 day notice requirement specified in Rule 25-2(1). Master Caldwell issued a written decision for the benefit of practitioners. He rejected the argument of the applicant that Rule 25 did not apply because the Deceased had died before March 31, 2014. The Court emphasized that the notice requirement of Rule 25-2 is mandatory, and must be followed in all probate applications filed after March 31, 2014 regardless of when the Deceased died.

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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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