Mar
3
By John Jordan
On March 31, 2014, the Wills, Estate and Succession Act ("WESA") repeals and brings together the current Wills Act, the Estate Administration Act, the Probate Recognition Act and the Wills variation Act. It also amends dozens of other provincial statutes, including the Survivorship and Presumption of Death Act.
WESA's goal is to make wills, estates and succession legislation in British Columbia easier to access, use and understand. It contains principles guiding wills, estates and succession law now found in the common law. We can expect a great deal of uncertainty for the foreseeable future on how WESA will affect estate plans.
The following is a brief summary of WESA's more notable changes in the law in this area and should not be taken as specific legal advice.
Wills
A will is no longer revoked by a subsequent marriage;
A court has greater power to ensure that a deceased person's "testamentary" document (this could be a handwritten note, an email, notes in the lawyer's file) will be respected, even if it does not strictly meet the requirements of a will;
-if the validity of a will is challenged on the grounds of undue influence, the onus now is on the recipient of the gift to disprove that the gift in the will was not obtained through "undue influence";
-a gift to a brother, sister or other "descendant" of the deceased who dies before the deceased, now goes to the remaining beneficiaries in proportion to their interests;
Survivorship-Property Rights
-for gifts in a will, a beneficiary who does not survive the will maker (the deceased) by 5 DAYS is considered to have died BEFORE the deceased will maker.
-where persons who own property jointly together, die in a common disaster, their rights to property will be determined as if each person survived the other- each joint tenant is considered to have owned the joint property as tenants in common;
-where a beneficiary in a will dies in a common disaster with the deceased the condition for the beneficiary to take the gift in the deceased's will is considered to have occurred.
Dying Without a Will
WESA brings a major change to how "intestate estates" will be distributed. Currently, the intestate's estate passes to the closest kin.
The new distribution scheme is "Parentelic." This means that where the deceased has no spouse or issue, the estate passes to the parents of the deceased and their descendants (the deceased's siblings, nieces and nephews...). The descendants of the nearest common ancestor of the deceased take from the deceased's estate before descendants of a more remote ancestor.
If the deceased dies leaving a spouse and children, the spouse is entitled to the first $300,000.00 of the deceased's estate, if the deceased and the spouse shared the same children. This amount is reduced to $150,000.00 if the deceased's children are from another relationship.
Having a conversation with your attorney about these changes will ensure things are done just the way you intend and with no delay or undue stress for your beneficiaries.