by David Hobbs
WESA comes into force in B.C. on March 31, 2014.
The origins of WESA exist in a desire to modernize the succession law, reduce the number of wills and estates statutes and create new administration procedures for small estates. WESA repeals: Estate Administration Act; Probate Recognition Act; Wills Act; and Wills Variation Act.
WESA sets out a definition of what constitutes a will. S. 59 of WESA expands the Court’s power to rectify minor errors in a will to meet the will-maker’s intentions. These include accidental slip; a misunderstanding of the will-maker’s intentions; and a failure to carry out the will–maker’s instructions. Extrinsic evidence is admissible to prove the existence of the above circumstances. The interested applicant has 180 days to pursue such matters from the date of grant of probate, unless leave is granted for an extention.
S. 4 of WESA addresses simplification of extrinsic evidence that is admissible and not admissible when dealing with the will-maker’s intention.
S. 58 empowers the Court to order relief if the will-maker failed to comply with certain formal requirements to make a valid will. This includes alterations, revocation and reviving a will.
Recognition exists for wills made electronically under s. 58 and a test is formulated for determination of the will-maker’s intention. As s. 58 is similar to s. 23 of the Manitoba Wills Act, Manitoba law may assist in interpretation of s. 58 by analogy. The question to be answered has been described as whether the document expresses the animus testandi of the deceased, or in other words, a deliberate or fixed and final expression of intention as to the disposal of his/her property.
The Rules and Forms for opposing a grant of probate have been modified in some respects from the pre March 31, 2014 Rules and Forms.
S. 158 applies to removal of a personal representative and the procedures and grounds have been modified, including dealing with substitution under s. 159.
The definition of “spouse” includes persons married to each other or who have lived in a marriage like relationship for at least 2 years.
The Rules for commencement of probate actions have been changed. Provisions exist for appointment of an administrator pendente lite and s. 52 reverses the onus or burden of proof from the previous common law position regarding undue influence. If there is proof of a potential for dependence or domination of the will-maker, then the defender of the will has the onus to establish that undue influence was not exercised over the will-maker. Persons’ drafting wills may be called as witnesses to prove the surrounding circumstances regarding the making of wills. Best practice guidelines exist as to recommended practices to be followed by lawyers drafting wills to make sure the will-maker is not a victim acting in an involuntary manner.
New procedures, Forms and Rules have been created regarding passing of accounts. Accounts may be passed summarily.
Wills Variation statutory law is unchanged under Part 6 of WESA. Distribution of estates is effected by s. 155, which replicates s. 12 of the Wills Variation Act.
A beneficiary may sue under s. 151. Gifts to witnesses is discussed in s. 43 of WESA and a gift to a witness may be void unless certain circumstances exist.
WESA represents a great deal of change to be learned and implemented.