There will be a new and important statute governing estate disputes and trust litigation that will be essential reading for lawyers in Vancouver, B.C.: the Wills, Estates and Succession Act, S.B.C. 2009, c.13 (“WESA”).
The WESA will be a new British Columbia statute that will repeal the Estate Administration Act, R.S.B.C. 1996, c.122, the Probate Recognition Act, R.S. B.C. 1996, c.376, the Wills Act, R.S.B.C. 1996, c.489, and the Wills Variation Act, R.S.B.C. 1996, c.490.
The WESA will come into force by regulation (s.270), and will apply to those deceased who die on or after the effective date of the relevant portion of the Act (s. 185, s.186(1), and s.187).
The WESA contains a number of key features and changes from the prior regime. Specifically, there are key provisions addressing, among other things, fundamental rules, intestacy, wills, and estate administration.
The WESA defines not only when two people will be considered spouses (s.2), but also when they will not (s.2(2)).
The definition of spouse recognizes both marriages and “marriage-like” relationships of at least two years (including relationships between two people of the same gender).
Note that although this definition is close to those contained in the Estate Administration Act and the Wills Variation Act, there is no longer any reference to “co-habiting.”
Two people will not be considered spouses (1) when they live separate and apart for at least two years and one or both formed, before or during separation, an intention to live separate and apart on a permanent basis; or (2) a trigger event occurs under Part 5 of the Family Relations Act, R.S.B.C. 1996, c.128.
The spousal status of two people living in a common-law relationship terminates when one person or both people end the relationship.
Another fundamental rule contained in the WESA relates to evidence.
Specifically, the WESA expands upon the general rule preventing admission of extrinsic evidence of intention except to aid in interpreting an ambiguity not evident on the face of the will. The rule now allows such evidence to be admitted where a provision of the will is meaningless, ambiguous on its face, or ambiguous in light of evidence outside the will.
With respect to intestacy, there are some important differences between the new WESA and the old regime.
First, the WESA allows for increased spousal shares.
While there is no change in situations where there are no descendants, the WESA significantly changes the rules where the deceased person has descendants. Where a spouse and descendants survive an intestate deceased, the spouse will receive the household furnishings and the spousal preferential share—there is no life estate in the spousal home.
After distribution of the spousal preferential share, the residue of the estate is divided 50% to the spouse and 50% to the descendants in the manner prescribed by s.24.
Second, the WESA abolishes the statutory life estate.
Under the WESA, rather than a life estate in the spousal home, a surviving spouse is granted an option to purchase the spousal home. The surviving spouse has 180 days (from the date of the representation grant) in which to exercise the option. However, this timeline can be extended by the court.
In cases where the purchase of the spousal home would cause financial hardship on the surviving spouse, the surviving spouse may apply to the court, which has, under s.33, a broad discretion to make various orders (such as vesting the spousal home in the spouse or setting the amount the spouse must pay the descendants).
The WESA significantly changes the law regarding the power of the court to grant relief where formal requirements of a will have not been complied with (s.58).
The power given to the court allows the court to remedy (upon application) defective formalities of execution in a will that would otherwise defeat the deceased’s true testamentary intentions.
Additionally, under the WESA marriage will no longer revoke a prior will.
The provision contained in the Wills Act that revokes a will on marriage has been removed, the rationale for removal being that the provision was largely unknown, could potentially upset testamentary intentions, and was inconsistent in not applying to common law situations. Overall, the provision no longer served its original social purposes.
The WESA’s most important innovation respecting estate administration is the creation of a new regime, applicable to both testate and intestate estates, for dealing with small estates (s.109, s.120).
The essential structure of the regime is that an applicant within a limited potential class of applicants will give necessary notice and file a small estate declaration with the court, after which time the applicant will become the personal representative. There is no requirement for a further court order and no security need be posted.
However, the authority under a small estate declaration will end once it is determined that the estate no longer qualifies as a small estate.
In conclusion, the WESA will be a new and important statute relating to estate disputes and trust litigation, and will repeal a number of statutes, including the Estate Administration Act, the Probate Recognition Act, the Wills Act, and the Wills Variation Act.
The WESA alters, to a substantive degree, various provisions contained in the prior statutes. Such alterations relate to, among other things, fundamental rules, intestacy, wills, and estate administration.
This article provides only a brief overview of the WESA; for more detailed information, please refer to the Wills, Estates and Succession Act Transition Guide, authored and published by the Continuing Legal Education Society of British Columbia, 2010.