Since March 31, 2014, the Wills, Estates and Succession
Act ("WESA") has been the applicable
legislation regarding wills and estates matters in British
Columbia. WESA gives the courts the power to
"cure" deficiencies in Wills that would formerly have
been invalid for failure to comply with the required formalities
under the less forgiving Wills Act (repealed by
Can the courts "cure" a deficient Will made prior to
the WESA regime? The general application of WESA is that
it applies if the death of the person whose Will and/estate is at
issue occurred on or after March 31, 2014. As such, the courts do
have the power to "cure" a deficient Will as long as the
will-maker passed away after WESA came into effect.
The recent decision in British Columbia v. Sheaffer
("Sheaffer") is an example of the Court
drawing a hard line in terms of the March 31, 2014 cut-off date for
the application of WESA. The dispute arose because of a
second unsigned will of the deceased that differed from the
original, which was properly executed. The question of which
legislation was applicable is important because, under the
Wills Act, the second will was insufficiently executed and
therefore invalid. On the other hand, under WESA, the
Courts would have the authority to accept a document despite a lack
of the traditional formalities, if the Court is satisfied that the
document represents the will-maker's true intentions. In this
case, the will-maker passed away in 2011 so the Court applied the
Wills Act and found the second will to be invalid.
The Defendant argued, among other things, that the March 31,
2014 cut-off date is arbitrary and fundamentally unfair, and it
violates his Charter rights. The argument failed and the Court
found that the transitional sections of WESA and
applicable date are a practical necessity. The Court does not have
discretion to stray from the strict imposition of the transitional
structure, specifically the March 31, 2014 cut-off.
The decision in Sheaffer forms a guideline for
litigants hoping to find relief under the curative provisions of
WESA. The courts are not likely to entertain arguments
under WESA unless the will-maker passed away after March
31, 2014. The costs of the litigation may form another deterrent
for litigants from improperly pursuing a matter under
WESA. Typically, both parties' costs in estate matters
are awarded out of the estate when the litigation was brought
because of the will-maker's conduct. However, litigants that
force this issue may end up paying their own costs and the costs
incurred by the estate, as was the case in Sheaffer.
Thank you to Elina Hartshorne for assisting with this blog
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It is not uncommon for parents to provide monetary gifts to their adult children. Parents may wish to help their child with a down payment on a property, or help pay out their child's existing mortgage.
On March 31, 2014, BC's new Wills, Estates and Succession Act1 ("WESA") will come into force. WESA introduces new protections for beneficiaries of estates that are in danger of being disputed or deemed ineffective by a court.
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