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Emma McArthur - New Wills and Estates Act
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Emma McArthur - New Wills and Estates Act

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Emma McArthur - New Wills and Estates Act

Emma McArthur - New Wills and Estates Act

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  • 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 2
  • 3. Effect?• Will repeal and consolidate 4 significant statutes and amend many others• Accompanied by new and amended Supreme Court Civil Rules 3
  • 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 4
  • 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 5
  • 6. Highlights - some of the significant changes1. Definitions • “Testator” and “testatrix” replaced with “will-maker” • “Descendants”, not “issue” • New concept – “nominee” • No grants of probate 6
  • 7. 2. New minimum age to make a valid Will: • 16 7
  • 8. 3. New minimum age to make a valid Will: • 16 8
  • 9. 4. Revocation of Wills: • Automatic revocation of Wills by a subsequent marriage of will-maker is abolished 9
  • 10. 5. Definition of “Spouse” • Marriages & marriage-like relationships of at least 2 years • Includes opposite and same-sex relationships 10
  • 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) 11
  • 12.  Common law? > When one or both persons terminate the relationship 12
  • 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 13
  • 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 14
  • 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 15
  • 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 16
  • 17. 11. Simultaneous death? • Presumption that younger person survived older person is abolished • Each person is considered to have survived the other 17
  • 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” 18
  • 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 19
  • 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 20
  • 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 21
  • 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 22
  • 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 23
  • 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 24
  • 25. 17. Beneficiary Designations • Now – statutory provisions governing beneficiary designations for insurance are different from those applicable to RRSPs, RRIFs and other benefit plans 25
  • 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 26
  • 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 27
  • 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) 28
  • 29. 19. What Hasn’t Changed? • Wills Variation Act substantially the same despite significant changes recommended • Some minor procedural changes relating to notice requirements 29