Life Cents Magazine – April – June 2014 Edition (In Print, Available at Chapters)
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The New BC Wills, Estates & Succession Act (WESA)

As of March 31, 2014, a new legislation called the Wills, Estates & Succession Act (WESA) will come into effect in British Columbia. WESA introduces significant changes in terms of the estate administration process and also establishes upon some important, equitable rules in situations where a person dies without a Will.

This new Act replaces the following acts and consolidates them into a single comprehensive piece of legislation dealing with wills, estate administration and succession rights:

• Estate Administration Act, RSBC 1996, c. 122
• Probate Recognition Act, RSBC 1996, c. 376
• Wills Act, RSBC 1996, c. 489
• Wills Variation Act, RSBC 1996, c. 490
• Law and Equity Act, RSBC 1996, c. 253, s. 46, 49, 50 & 51
• Survivorship and Presumption of Death Act, RSBC 1996, c. 444, s. 2

What’s new under WESA?

Here are some highlights of what will change under the new Act:

1. WILLS

• Age: Anybody over the age of 16 will be able to make a Will.

• Marriage: Under the current (soon-to-be-outdated) Wills Act, a Will made before marriage is revoked by the subsequent marriage, such that if someone made a Will prior to getting married and did not specify that the Will was made in anticipation of marriage; the Will would no longer be valid once a person enters into a marriage. This requirement was not well-known by the general public, and has led to many accidental revocations of Wills through marriage. Under WESA, marriage will no longer revoke a Will.

• Beneficiary as a witness: 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 Court on application.

2. SURVIVORSHIP RULES

• 5-Day Rule: WESA has a new provision that requires a person to survive for at least five days in order to inherit under a Will. The idea is that if an intended beneficiary is deceased, a person unknown to the deceased will-maker may potentially receive a gift through the will of the intended beneficiary. As this is probably not what the will-maker would want, most professionally prepared Wills would require a beneficiary to survive the will-maker for a specified period (usually 30 days or more) in order to inherit.

• Older versus Younger: Under the current legislation, if two people die in an accident where it is impossible to tell who passed away first, the younger person was presumed to survive the older person such that any joint assets will pass to the survivor. Under WESA, each of the two people who die together will be presumed to survive the other such that all joint tenancies (property owned together as joint tenants) will be severed and the estate of each person shall share the joint asset equally.

3. INTESTACY RULES

Intestacy describes the situation where a person has died without a Will. Such a person is called an “intestate”.

• With Spouse & Children: For an intestate with spouse & children surviving:

Pre-WESA: The spouse receives the first $65,000 of the estate, plus ½ the remainder if they have 1 child OR 1/3 of the remainder if there are 2 or more children surviving (i.e. the rest of the children share equally in the remaining 2/3 portion). In addition, the spouse gets the household furnishings and a life interest in the matrimonial home.

WESA: Now the spouse receives the first $300,000 if the children belong to both the deceased and the spouse; but if there are children of the deceased from a prior relationship, the spouse receives only the first $150,000. The remainder gets split ½ to spouse; ½ to child or among children equally. The spouse also has an option to buy the matrimonial home or elect that it be considered part of his/her share of the estate; but this option must be exercised within 180 days from the grant of letters of administration.

• Without Spouse nor Children: For an intestate with no spouse nor children surviving:

Pre-WESA: The intestate’s estate is passed by blood relationship (degree of consanguinity).

WESA: Now the intestate’s estate is passed by parental root (parentelic distribution).

For example, if the person dies without a Will and has one uncle and one cousin surviving – pre-WESA the uncle will inherit everything because he is a 3rd degree relative (cousin is 4th degree); now both the uncle and the cousin will share equally (because they are both descendants of the deceased’s grandparents).

4. PROBATE COURT PROCEDURES

The court forms and procedures required to probate a Will, or to appoint an administrator where there is no Will, are changing to make it simpler for the lay person to submit an estate for probate. The goal is to ensure consistency for probate applicants and streamline court processes to provide more timely service.

5. CHALLENGING A WILL

Pre-WESA: The person challenging the Will must prove that undue influence was exerted on the Deceased directly.

WESA: Now, the onus has shifted from the challenger to the beneficiary (usually a caregiver) who is claiming that the Will is valid, to prove that undue influence was not exerted.

6. TESTAMENTARY INTENT

It used to be that the deed of Will must strictly follow the Wills Act rules in order to be considered valid. Under WESA, it may now be possible for a document which is not duly signed and completed to be considered a “Will”. The court have power to declare that a document which does not meet the formality requirements of a Will, to be effective as a Will. There will also be additional powers for a Court to “fix” a Will that has errors, if testamentary intent is proven.

Although the new law brings together various statues with the aim of making the law more up-to-date and reflective of the current needs of society, it also appears to give the Courts more discretion and power to open up issues for debate. For example, an unsigned or improperly executed copy of a Will, lawyer’s notes from discussions with a client, or perhaps a copy of a draft Will stored on the deceased’s electronic device may be examined for the Will maker’s true intentions. It will be interesting to see how judges will interpret the new changes in WESA and time will certainly tell whether such changes will lead to increased litigation in the upcoming future.

THE CAO LAW CORPORATION