Effective March 31, 2014, the Wills, Estates and Succession Act (“WESA”) replaces the current Wills Act, Wills Variation Act, Estate Administration Act and Probate Recognition Act. in B.C.
WESA Summary of the Changes
Below are a few points highlighting some of the changes that WESA introduces:
The legal age to create a will be reduced to 16 years of age (formerly 19).
Marriage no longer automatically revokes a will, therefore newlyweds should make a will.
Currently, personal property is applied before real property when satisfying estate debts. Under WESA real property and personal property will be regarded equally to satisfy estate debts.
Currently, if a person dies without a will, then upon the division of their estate their surviving spouse receives the first $65,000 and shares in the remainder of the estate along with the deceased’s children. Under WESA – a spouse with the deceased’s child gets all the household furnishings and the first $300,000 of additional assets and one half of the balance of the estate. If there are children from a previous marriage the spouse gets $150,000 (instead of $300,000) and the children of the deceased share in the remainder, this is favourable for blended families. Where the family home is in the name of the deceased alone, WESA abolishes the interest of a spouse in the family home; instead WESA gives a spouse the right to acquire the home within 180 days of death.
At present, the common law presumption is that a gift to a child is an advancement of that child’s inheritance and is therefore deducted from that child’s share of the estate. Under WESA, a gift to a child is no longer considered an advancement of that child’s inheritance; that child shares in the estate under the will.
If a child or sibling (of a will maker), predeceases and no alternative beneficiary is named in the will, only descendants of a predeceasing beneficiary inherit. For all other beneficiaries, where no alternative beneficiary is named, the failed residuary gifts go to the surviving residuary beneficiaries.
5 Day Survivorship Rule – Under WESA, heirs and appointees are presumed to have predeceased the will-maker if they die within 5 days of the will maker’s death. In a common disaster, the younger person was deemed to have outlived the older. Under WESA, the presumption regarding the order of death is abolished. Joint tenancies are deemed to be severed. People who die together are presumed to have survived each other; they each take their share of the joint assets into their own estates.
Currently a ‘spouse’ includes a common law marriage or a ‘marriage–like relationship’ for at least two years prior to death. Currently the Wills Variation Act gives a spouse or child standing to challenge for inadequate provision made in the deceased’s will. Separated spouses (not divorced) may also make a claim. Under WESA, spouses who are separated with the intention of living separate and apart permanently, after two years, are no longer considered spouses, even if they are not divorced.
WESA introduces new probate application rules and procedures amending the notice periods for application of a representation grant; the period of advertising for creditors; and the ultimate distribution of the estate to beneficiaries.
Currently a caveat is filed to prevent a grant being issued and the estate being administered for up to 6 months. Under WESA a notice of dispute (caveat) once filed will last for one year. Undue Influence – currently the onus of proving undue influence rests with the person challenging the will. WESA reverses that onus creating a presumption of undue influence in certain cases. If a party challenging the will establishes that a person was in a position of potential domination or dependence of the will-maker, the onus shifts to the party defending the validity of the will to prove that no undue influence was exercised over the will-maker. ‘Make A Will Week’ is the perfect opportunity for you and your family to discuss how WESA may affect your personal situation and to review your estate plan from making a will to considering and implementing a power of attorney, health care representation agreement or a family trust. For more information and advice please contact Tim Grier in our Langley Wills, Estates and Trusts Department who will be happy to assist you further.