Wills, Estates and Succession Act (“WESA”) will come into force on March 31, 2014.
The Wills, Estates and Succession Act was passed by the B.C. legislature on Sept. 24, 2009 and comes into force on March 31, 2014.
The new act will provide greater certainty for individuals who put their last wishes into writing and simplifies the process for those responsible for distributing an estate. A number of factors have influenced the implementation date. The Wills, Estates and Succession Act and new Probate Rules make significant changes to the process for applying for and challenging applications for probate and administration. As well, the courts, public, and legal practitioners are just adjusting to the significant changes brought about by the new Family Law Act, which came into force March 18, 2013. The March 31, 2014, date will provide the court registry with time to train staff and make necessary systems changes.
Moreover, it is felt that this date will provide legal practitioners time to familiarize themselves with the changes before WESA and new Probate Rules come into force. Comprehensive resources are now available on the Ministry of Justice website to provide information about the transition to the Wills, Estates and Succession Act.
The Wills, Estates and Succession Act and new Probate Rules are the result of a beneficial collaboration with the British Columbia Law Institute and a number of volunteers, including legal practitioners, academics, and a Master of the Supreme Court. Further information about the development of WESA and the new Probate Rules can be found on the British Columbia Law Institute website.
The new Act will change significantly the law of Wills and estates.
Some of the Highlights:
- The survivorship rule has been changed from the arbitrary “younger survives older,” to have the estate pass to each person’s alternate beneficiaries.
- A minimum 5-day survival rule has been added. Most Wills already have a longer (20+ day) survivorship requirements and these will still be allowed.
- A spouse’s right to life estate in the spousal home on intestacy has been eliminated. Instead, the spousal share in the estate has been increased and the spouse has a right to choose the spousal home as part of his or her share of the estate.
- The age of a person who can make a Will has been lowered to 16 years.
- The ban on gifts to witnesses of a Will is eliminated. Such gifts are allowed, if there is evidence the deceased approved of the gift. The ban was often unfair.
- The Act presumes undue influence if it is shown that the deceased was dependent on (or there was the potential for domination by) a person to whom he or she gave a gift in the Will. This is the law for gifts given during a person’s life.
- It is easier to revoke a Will. Often, people would commit acts that clearly expressed intent to revoke a Will but that did not meet the formal requirements.
- The court has been given the power to “cure” deficiencies in a document that does not meet the formal requirements to be considered a Will, if satisfied that the document expresses the true wishes of the deceased.