On March 31, 2014 a new law came into effect in British Columbia. It made changes that investors and business owners, and everyone in the province for that matter, should pay attention to.
The new law, The Wills, Estates and Succession Act (WESA), “provides greater certainty for individuals who put their last wishes into writing and simplifies the process for those responsible for distributing an estate,” according to the Ministry of Justice website.
An article published in The Globe and Mail included the following list of some of the more significant changes identified by Mary-Jane Wilson, a wills and estates lawyer at Wilson Rasmussen LLP in Surrey.
- 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.
- 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.
Wilson is also the author of the British Columbia Probate Kit.
You’ll find the full article by The Globe & Mail at “Why new B.C. law makes a will more important than ever”
The BC Government’s Ministry of Justice website outlines the benefits of the new law as follows:
- clarifies the process of inheritance when a person dies without leaving a will;
- makes the process easier for a person to transfer the title of their spousal home when their spouse dies;
- clearly outlines the sequence in which to look for heirs to a person’s estate;
- 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’s and Treaty First Nation lands; and
- lowers the minimum age at which a person can make a will from 19 to 16 years old.
As The Globe and Mail article says:
“So if you live in B.C., all of these changes to the law are good reasons to get your estate planned, your will drafted and your house in order in case that wayward bus is coming for you.”