Sometime during 2011 British Columbia’s new “Wills, Estates and Succession Act” will come into force. BC’s first overhaul in nearly a century of its estate legislation, this one new act will replace the current Wills Act, Wills Variation Act, Estate Administration Act and Probate Recognition Act. Rest assured, this new legislation does not invalidate your existing will and estate plan. However, your will and estate plan will become subject to this new legislative regime once it comes into force. In addressing the challenge of updating our estate legislation, the legislation re-confirms some areas of the existing law (for example, the ability for a disinherited child to commence a legal action to vary a parent’s will remains in effect) while introducing both minor and major changes. In brief, then, some of the changes:
- Revised processes for administering estates of all sizes.
- An increase in the amount of money a surviving spouse is entitled to when the deceased spouse died without a will (currently the surviving spouse receives $65,000 and shares the remainder with the children whereas now the surviving spouse may receive upwards of $300,000 before sharing the remainder with the children).
- A greatly enhanced ability for individual beneficiaries, with permission from the court, to commence and defend legal actions relating to the estate. At present, this ability is mostly restricted to the executor/personal representative of the deceased.
- A will is no longer automatically revoked by marriage.
- A gift in a will may be revoked in situations where married couples are just separated, and not divorced, in addition to being revoked upon divorce—whereas a gift is currently revoked upon divorce but not separation.
- A gift to a child is no longer interpreted as an advancement of that child’s inheritance and said child shares in the estate as per the terms of the will. At present, there exists a common law presumption that a gift to the child is an advancement of that child’s inheritance and is therefore deducted from that child’s share of the estate.
- Real property and personal property will now be regarded equally when needing to satisfy the debts of the deceased. Currently, personal property is looked to first before real property when needing to satisfy the debts of the deceased.
The above is just a summary snapshot of some of the changes. The impact of this new legislation on each individual will be as unique as the individual him or herself. Everyone should have a will—and everyone who has a will should periodically review his or her estate plan. We encourage you to visit your lawyer should you have any questions or concerns about your estate plans and how those plans may be affected by the new law.
Trusts & Estate Law Lindsay Kenney LLP
This article is intended to be an overview of the law and is for informational purposes only. Readers are cautioned that this article does not constitute legal or professional advice and should not be relied on as such. Rather, readers should obtain specific legal advice in relation to the issues they are facing.