Emma McArthur - New Wills and Estates Act

1. WILLS, ESTATES AND SUCCESSION
ACT
Emma A. McArthur
Estate Planning Council of Abbotsford
May 16, 2012

2. Wills, Estates and Succession Act
(“WESA”)
• Introduced September 14, 2009
• Received Royal Assent October 29, 2009
• Expected to be proclaimed in force spring 2013
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3. Effect?
• Will repeal and consolidate 4 significant
statutes and amend many others
• Accompanied by new and amended
Supreme Court Civil Rules
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4. Background:
• 1980’s – Law Reform Commission of BC
publishes a series of reports and
recommendations
• 2003 – B.C. Law Institute and AG initiate the
Succession Law Reform Project to modernize
law
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5. Continued ...
• 5 subcommittees established involving
practising lawyers, academics, court
officials, AG representatives and a notary
representative
• Consolidated 350 page report issued,
including draft legislation
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6. Highlights
- some of the significant changes
1. Definitions
• “Testator” and “testatrix” replaced with
“will-maker”
• “Descendants”, not “issue”
• New concept – “nominee”
• No grants of probate
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7. 2. New minimum age to make a valid Will:
• 16
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8. 3. New minimum age to make a valid Will:
• 16
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9. 4. Revocation of Wills:
• Automatic revocation of Wills by a
subsequent marriage of will-maker is
abolished
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10. 5. Definition of “Spouse”
• Marriages & marriage-like relationships
of at least 2 years
• Includes opposite and same-sex
relationships
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11. 6. Specifies when persons will
cease to be considered spouses:
Married?
• When they’ve lived separate and apart for at
least 2 years and one or both have intention to
live separate and apart permanently, or
• A triggering event occurs under part 5 of the
Family Relations Act (i.e. separation agreement,
declaration of no reasonable prospect of
reconciliation, dissolution, nullity)
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12.  Common law?
＞ When one or both persons
terminate the relationship
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13. 7. Spousal share of an intestate estate:
• No descendants? Spouse takes all
• Descendants? Spouse receives:
＞ household furnishings
＞ spousal preferential share
＞ life estate in spousal home is eliminated and
replaced with an option to purchase it
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14. 8. Calculation of Spousal Preferential
Share
• If all descendants of deceased are also
descendants of spouse: $300,000
• If not? $150,000
• Balance of estate: 50% to spouse and
50% to descendants
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15. 9. Parentelic Distribution Scheme Adopted
• No spouse, descendant, parent or
descendant of a parent?
• Estate is divided between maternal
and paternal grandparents or their
descendants
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16. 10. New Survivorship Rules
• If a person does not survive a
deceased person by 5 days, that
person is deemed to have died
before the deceased person
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17. 11. Simultaneous death?
• Presumption that younger person
survived older person is abolished
• Each person is considered to have
survived the other
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18. 12. Court Power to Cure Deficiencies
• Includes deficiencies in execution
formalities
• But court may also give testamentary
effect to any “record, document, writing
or marking on a Will”
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19. Continued ...
• “Record” is broadly defined - includes
electronic data that can be read and
reproduced
• Test is whether it reflects the testamentary
intentions of the deceased
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20. 13. Expanded Court Power to Rectify Wills
• To correct accidental errors and
misunderstandings and failure by the Will
drafter to carry out the will-maker’s
instructions
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21. 14. Secured Debt Passes with Gifted
Property/Assets
• Property or asset is gifted to a beneficiary and
is subject to a mortgage or purchase money
security interest?
• Beneficiary takes the gift subject to that debt
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22. 15. Administration of Small Estates
Will probably be defined to mean:
＞$50,000 and no interest in land
＞Applies to testate and intestate estates
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23. Continued ...
＞Procedure not yet clear
＞Likely that an applicant who falls within a
specified class will give necessary
notice(s) and file a small estate
declaration with court and will then
become the deceased’s personal
representative
＞No court order and no security required
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24. 16. Security Where Administration is Sought
• Now – presumption is that security must be
posted by administrator
• WESA – security only required where
(i) minor is involved or
(ii) mentally incapable person without
“nominee” involved or
(iii) court requires security on application by
an interested person
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25. 17. Beneficiary Designations
• Now – statutory provisions governing
beneficiary designations for insurance are
different from those applicable to RRSPs,
RRIFs and other benefit plans
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26. Continued ...
• WESA makes the provisions applicable to
RRSPs, RRIFs and other benefit plans
the same
• Will be able to appoint a trustee of an
RRSP, RRIF or other benefit plan
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27. Continued ...
• “Nominee” will be able to make a
designation consistent with a prior
designation of beneficiary made by the
owner of the plan if the plan is renewed,
replaced or converted
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28. 18. Common Law Presumptions Abolished
i.e.
＞Gift to child is an advance of that child’s
inheritance
＞Legacy in Will is revoked if will-maker made a
gift during his/her life of the same amount to that
beneficiary
＞Debt owed by will-maker is satisfied by a legacy
equal to or greater than the debt (under WESA,
debt continues to be enforceable against the
estate)
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29. 19. What Hasn’t Changed?
• Wills Variation Act substantially the same
despite significant changes recommended
• Some minor procedural changes relating
to notice requirements
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