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On March 31, 2014, British Columbia’s new estate legislation, the Wills, Estates and Succession Act (WESA), came into force and effect. This long anticipated legislation updates and replaces several of B.C.’s somewhat antiquated acts that dealt with estate planning and estate administration. WESA contains some new and interesting features that we will expand on in this and future issues of Letter of the Law. In this article we provide an overview of some key changes that affect wills and estates generally.
The immediate question is: what does WESA mean for you and your existing will? In short, the answer is that WESA applies to all wills and estates that arise as and from March 31, 2014. If you have a valid will that was signed prior to March 31, it is still valid after March 31. However, if you revoked your will before March 31, WESA does not revive it. A revoked will means that you need to prepare a new will, regardless of the coming into force of this new law.
WESA significantly updates who constitutes a spouse. Spouses now specifically include married spouses, common-law spouses, and spouses of the same gender.
Importantly, WESA also defines when spouses cease to be spouses. Married couples are no longer considered spouses if they have lived separate and apart for at least two years and have both formed the intention to do so permanently. The same condition applies when an event occurs that constitutes separation under B.C’s Family Law Act. Common-law spouses are considered to no longer be spouses when one or both terminate the relationship.
This clarification of the definition of a spouse addresses the potential conflict that could occur under B.C.’s old legislation when someone died with, technically, more than one spouse. Such a circumstance might have arisen, for example, when a person married and subsequently left his or her spouse without divorcing him or her. If this person then moved into a common-law relationship with another person, following his or her death, he or she would have left two spouses who were able to make a claim against his or her estate under the wills variation legislation.
Furthermore, WESA removes the old rule that a marriage revokes a will. Any marriage after March 31, 2014 will no longer revoke a person’s will that had been made prior to the marriage. However, it is important to note that if you were married before March 31, 2014, and you had a previous will in place before that marriage, it will still be considered revoked.
In keeping with a more modern approach, WESA also addresses the issue of an adopted child. In conjunction with B.C.’s Adoption Act, an adopted child cannot make a claim against the estate of a natural birth parent (and, correspondingly, a natural birth parent cannot make a claim against the estate of a child given up for adoption). However, this rule does not preclude an adopted child or a natural birth parent from making a distribution to, respectively, that natural birth parent or adopted child in his or her will.
Addressing an aspect of the modern blended family, a stepchild cannot make a claim against a stepparent’s estate unless that stepparent has formally adopted that stepchild.
One of the key fundamentals in both B.C.’s former legislation and WESA is the ability of a spouse or a child to contest the distribution under a spouse’s or parent’s will. Given the complexities of today’s modern family structures, it is important for parents in blended families to fully consider how their estates are to be dealt with. As previously mentioned, stepchildren, unless adopted, do not have standing to contest the will of a stepparent. In such a blended family scenario, this position can have significant consequences and potential conflicts for all involved family members.
Another significant change is to the rules that arise on intestacy. On and after March 31, when a person dies without a will, the following stipulations will apply:
WESA brings in a major change in dealing with survivorship. Under the former legislation, the common-law rule was that the oldest person was deemed to have died first when it could not be determined who had actually died first. WESA revokes this rule and, in its place, has created the following scheme: where the order of death cannot be determined, such a situation will mean that each person will have been deemed to have survived the other. Consequently, any property jointly held between two people will be treated as if it was held as tenants in common, creating a 50-50 split of such property. This scheme is subject to any contrary intention set out in a will.
Furthermore, WESA builds in a five-day survival period should a will not specify otherwise. This means that if a person fails to survive a deceased by five days, he or she is deemed to have died before the deceased person and any distribution or gift to that person will fail.
WESA is a welcome update to British Columbia’s estate planning and estate administration legislation. However, as with any new legislation, there are changes and additions that create interesting issues with preparing your will, reviewing your estate plan, or administering an estate. In forthcoming issues of Letter of the Law, we will highlight and explore some of the significant changes that affect all aspects of estates and estate administration in British Columbia.
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