In September 2009, the Wills, Estates and Succession Act (WESA) passed third reading and is expected to come into effect in 2011. It repeals and brings together the current Estate Administration Act, Probate Recognition Act, Wills Act, and Wills Variation Act; it also amends dozens of other provincial statutes.
WESA’s goal is to make wills, estates and succession legislation in British Columbia more cohesive and easier to access, use and understand. It aims to codify certain principles guiding wills, estates and succession law which presently are only found in common law. B.C.‘s succession laws were last comprehensively reviewed in 1920 and many existing provisions in legislation can be traced back to the Wills Act of 1837.
Of the many changes being made, some of the more notable are:
Wills
A court will have greater powers to ensure a deceased person’s last wishes will be respected, even if the document containing those wishes does not strictly meet the requirements of a will. These will give a court the ability to correct errors in the formal execution of a will. Further, the existing presumption of undue influence in gifts made while someone is living will now also apply to gifts made under a will. This change means that the recipient of the gift must, if challenged, prove that he or she did not exert undue influence over a deceased—whether the gift was made during a deceased’s lifetime or through a will.
Other changes include: a will is no longer revoked by marriage and a person may make a will at the age of 16 (versus the current age of 19).
Wills Variation Claims
Under WESA, the current wills variation regime is substantively unchanged: a spouse or child of a deceased person must still commence a claim within six months of the granting of probate or letters of administration. However, unlike the current Wills Variation Act, which does not require a writ of summons to be served, a claimant commencing a variation proceeding must serve the executor within thirty days of issuing the writ, unless a court extends that time.
Administration of Estates
WESA will make it easier and faster to administer small estates, which are those less than $50,000 (currently the limit is $25,000). Although applications must still be made to a court, a small estate can avoid the legal formality of obtaining a grant of probate or letters of administration required for larger estates.
Another change concerns insolvent estates: WESA establishes that land will be used to pay off estate debts equally with personal property. Currently, when an estate has debts but lacks sufficient assets to cover them, bequests of personal property are used first to pay the debts followed by gifts of land.
Intestate Estates
A major change to the treatment of intestate estates is how they will be distributed. Distribution is currently based upon degrees of kinship—the intestate estate passes to the closest kin. Degrees of kin are counted upward from the deceased to the nearest common ancestor and then down to the relative.
The new distribution scheme under WESA is “parentelic” which means that, where the deceased has no spouse or children, the estate passes to the parents of the deceased and their descendants (the deceased’s siblings, nieces, nephews, etc.), and, if there are none, to the grandparents and their descendants and so on until an heir is found.
Ultimately, the difference between the two modes of distribution is that, under the new parentelic system, the descendants of the nearest common ancestor take from the deceased’s estate before descendants of a more remote ancestor. This system will allow a more even division between the two sides of an intestate’s family.
Another significant change involves the distribution of an intestate’s estate when the deceased leaves a spouse and children. Under WESA, a spouse is entitled to $300,000 if he or she shared children with the deceased. This amount is reduced to $150,000 if the deceased’s descendants are from another relationship. This change better accommodates blended family circumstances.
These changes represent just a few of the many being made to B.C.’s wills, estates and succession legislation. To find out how these changes will affect you and your estate planning, we recommend that you contact a solicitor to ensure that your estate planning wishes are upheld. Executors and administrators of estates should do likewise to ensure that their actions comply with the new procedures after WESA comes into effect.
For more information about the Wills, Estates and Succession Act, please contact Mark Thompson at mthompson@singleton.com or Alana Dale-Johnson at adale-johnson@singleton.com.