Sweeping changes were made to the wills and estates legislation in BC in 2014. Make an appointment with one of our lawyers to discuss how WESA may affect your estate planning. Here are some of the highlights:
Repeal of old legislation
Firstly, out with the old: the Wills Act, Estate Administration Act and the Wills Variation Act are all toast. So forget everything you thought you knew. Welcome WESA: the Wills, Estates and Succession Act.
Formalities of making a will
The making of a will was formerly governed by a number of rigid rules. Transgress them and the will was invalid; so for example, if there was no second witness, or that witness was named in the will, or the testator subsequently made a minor alteration to the will, you had problems. WESA softens some of these rules, offering at least the possibility of saving imperfectly drawn or executed or amended wills.
WESA lowers the age for making a will to age 16, and, although it doesn’t give full blessing to holograph wills, it does sanction less formal expressions of testamentary intent. In some circumstances, a draft of a will, or a testators notes might be admitted to probate. How this will all work in practice will, of course, require a lot on interpretation from the courts.
The procedures for applying for probate of a will have been altered, and a whole new set of forms has been devised. For example, there is now a 21-day waiting period after notice has been given to interested parties, before the application can be made, and a further 210-day waiting period after Probate has been granted, before the loot can be distributed.
Estates will be divided into simple and complex categories, with different forms and different procedures applying to each.
Notices to creditors will only have to be published in the Gazette, and not in the newspaper.
These are the rules that determine who gets what, in various circumstances. For example, presently when the plane goes down and both spouses are on board, we presume the older one died first. Under WESA, there is a mandatory 5-day survivorship period, and in a common disaster, each spouse is presumed to survive the other, for purposes of dealing with jointly owned property, and the joint tenancy is severed.
In the case of persons dying without a will, we will no longer use the tables of consanguinity to determine who inherits, but rather, will use a system called paternicity, which yields considerably different results, especially for more distant relations.
Contested wills and estates
WESA is intended to be a complete code for end-of-life matters, so all of the various actions whereby one might contest a will, or protest the way an estate was being handled, or request a variation of the will now all fall within its ambit, and litigious matters are all expected to be resolved under a single court file.