The Wills, Estates and Succession Act SBC 2009, c. 13 (“WESA”) came into force one year ago (March 31, 2014) and drastically overhauled B.C.’s wills & estates legislative framework. One of the questions we get asked most often is whether a Will signed before WESA is still valid. This document sets out a few of the changes that may impact how Wills are drafted post-WESA or reviewing a will that was executed pre-WESA.
A Will that was signed pre-WESA shall (assuming it was valid pre-WESA) continue to be valid, however changes under the WESA scheme could impact how the Will distributes assets of an estate during administration. Such changes to be considered include:
Effect of Marriage – previously, if a person signed a will before they were married, that Will would be automatically revoked upon marriage (unless there was a clause contemplating the will-maker’s impending marriage). Under WESA, Wills will no longer be revoked by marriage.
Spousal Disinheritance – pre-WESA, a married spouse would be automatically disinherited from their spouse’s Will if they divorced or annulled their spouse, or there was a court ordered separation. However, there was no automatic disinheritance of common-law spouses. WESA corrects this and now common-law spouses will be automatically disinherited when the relationship ends. WESA also now states that married spouses will be disinherited if: (i) the spouses live separate and apart for 2 years (with the intention of living apart permanently); or (ii) the spouses “separate” under family law legislation.
Presumption of Death – previously, if a will-maker and a beneficiary died at the same time or in circumstances where it could not be determined which died first, the older of the two was deemed to have died first. Meaning, in the situation of a husband and wife, the younger spouse would be deemed to have survived the older spouse and (assuming they left their estates to each other first) the entire combined estate would flow out of the younger spouse’s estate. Under WESA, if a will-maker and a beneficiary die at the same time (or within 5 days of each other) then the beneficiary is presumed to have predeceased the will-maker. This means for a husband and wife that die together, the wife will be deemed to have died first for the purposes of administering the husband’s Will AND the husband will be deemed to have died first for the purposes of administering the wife’s Will. As such, the husband’s assets will flow to the backup heirs named in his will and the wife’s assets will flow to the backup heirs named in her will.
Presumption of Death – Jointly Held Assets – WESA also changes the way in which ownership of jointly owned property passes where the joint owners die in circumstances where it cannot be determined who died first. Under WESA, the joint ownership is now severed and each owner’s estate receives a 50% interest in the jointly owned property as a tenant in common (instead of the younger of the two owners receiving the asset in its entirety).
Multiple Wills – Multiple Wills is a strategy that can be used as a means of limiting probate fees. Under this strategy, all assets that are likely to require probate before they can be transferred to the beneficiaries will be distributed under one Will and assets that do not require probate would be distributed under another Will. Prior to WESA, there was much debate over whether it was possible to use multiple B.C. Wills to reduce probate fees. It is generally agreed now however that WESA will allow BC residents to use multiple Wills to minimize probate fees, provided that different executors are used. The multiple Will strategy is mostly being utilized by individuals with valuable corporate shareholdings. So long as the articles of incorporation allow for shares to be transferred without the requirement of probate, then this is a strategy that could be used. This strategy would be utilized when there are valuable assets that do not require probate to transfer them. It is important to note that there is a limitation period for making claims under the Wills Variation Act (and the equivalent provisions under the WESA) that are based on the date a Will is probated. If a Will is never probated, this limitation will never start to run.
Wills Variation Act – one area that WESA was notably silent on is Wills variations. There was no amendments to the Wills Variation Act and there was no additional guidance with respect to application of these provisions. As such, spouses and children, regardless of whether they are adults or minors of a will-maker continue to be entitled to challenge the will-maker’s Will if they believe they have not been adequately provided for in the Will.
Formal Requirements of Will – A significant change under the WESA regime is that a B.C. court will now have the power to declare a document (which does not meet the “formal requirements” of a Will), to be an effective Will. Emails, scraps of paper and DVDs may be considered a Will if the court is presented with sufficient evidence that the will-maker intended such document to be a Will. Some people may see this is a reason to start drafting their own Wills, however a court application to deem a document a valid Will can be costly and time consuming. As such, it is still a good idea to have a Will drafted or reviewed to ensure it meets the formal requirements set out under WESA.
In light of the changes that WESA makes, it is always a good idea that any will executed before March 31, 2014 be reviewed to ensure that WESA does not impact the Will in a way that would be contrary to the will-maker’s intentions. Will-maker’s should also review their Wills every time there is a major event that occurs in their life (ie: marriage, divorce or birth of a child).
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Author: Jennette Vopicka
This information is general in nature only. You should consult a lawyer before acting on any of this information. This information should not be considered as legal advice. To learn more about your estate planning needs, please contact our office at (250)448-2637 or any of our lawyers practicing in the area of wills & estates at the following:
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