The Wills, Estates and Succession Act (“WESA”) came into force on March 31, 2014. WESA replaces and consolidates (with substantial changes) four statutes that governed the passing of property on death and the administration of the estates of deceased persons. The act provides greater certainty for individuals who put their last wishes into writing and simplifies the process for those responsible for distributing an estate.
WESA makes some substantial changes to the laws of wills and succession in order to modernize the laws. If you live in B.C., its even more important than ever to make a will to ensure your wishes are followed on death including plans for your business continuing after your death.
WESA brings significant changes to the law in this area including:
- WESA doesn’t invalidate existing wills. Wills properly made prior to WESA coming into effect continue to be valid.
- WESA changes the law of intestate succession (if you die without a will). For example, if the deceased does not have a valid will, the spousal life interest in the spousal home is abolished. Instead, the spouse will have the right to purchase the spousal home.
- The distribution of assets has changed under WESA where there is a spouse and no will. Under the old regime, if there was no will, a spouse received the first $65,000 of an intestate’s estate. Now the spouse receives the first $300,000 from the estate but if there are children from a prior relationship, the spouse only receives $150,000. Under the old legislation, the closest family members to the deceased shared in the estate if there was no will pursuant to a specific formula. Although this principle remains unchanged, the manner in which the assets are distributed has been significantly modified. There are now different distribution rules in circumstances where there is no spouse or children.
- The new scheme is based on a “parentelic” scheme as opposed to “closeness to blood relations” scheme. Prior to WESA, estate lawyers were required to search all next of kin until an heir was found. Now, the search for an heir stops at the fourth degree of relationship and if no such heirs can be found, the estate will Escheat to the Crown (legalese for “the provincial government gets it”).
- Survivorship rules will change. Under the old legislation, in an accident where it was impossible to tell who died first (for example, a car accident or airplane crash) the youngest person who died was deemed to have survived the older person who died. Under WESA, each person is deemed to survive the other. Thus in the case of joint tenancy of an asset like land, the asset is deemed to be held as tenants in common and will not pass to the survivor. But, if the person fails to survive the deceased by five days, they are deemed to have died before the deceased.
- Where a witness to a will is also a beneficiary, the gift to the witness is still considered void, but it is possible for the gift to be saved by the courts upon a court application.
- To challenge a will based on undue influence, the onus has shifted from the opposing party having to prove undue influence directly, to the beneficiary (this is usually a caregiver) who is claiming that the will is valid, to prove that there was no undue influence.
- Marriage no longer revokes a prior will but if a will was revoked by marriage prior to March 31, 2014, it cannot be revived.
- Anyone over the age of 16 can now make a will in B.C. It used to be 19 years.
- Finally, the Courts in B.C. will now have the power to declare a document, (which does not meet the “formality requirements” of a will), to be an effective will nonetheless. Emails, scraps of paper and DVDs may be considered a will if the court believes that the willmaker intended it to be a will. A court can only “cure” an invalid will if there is sufficient evidence of the willmaker’s intention, and because a court application will be required, this will add expense to administering an estate; a good reason to have a will drafted now.
Additional benefits include:
- Makes the process easier for a person to transfer the title of their spousal home when their spouse dies
- Provides the courts with more latitude to ensure a deceased person’s last wishes will be respected
- Clarifies obligations relating to property inheritance in the context of Nisga’a and Treaty First Nation lands, and
The potential for possible unintended consequences can be significantly reduced or eliminated through careful planning and the implementation of a comprehensive estate plan. Now is a great time to review your existing plan or work with your trusted advisor to complete your estate planning to protect you and your loved ones from unintended consequences.The information provided above is for educational purposes only. This information is not intended to replace the advice of a lawyer or address specific situations. Your personal situation should be discussed with a lawyer. If you have any questions or concerns, contact a legal professional.