• Like
Emma McArthur - New Wills and Estates Act
Upcoming SlideShare
Loading in...5

Thanks for flagging this SlideShare!

Oops! An error has occurred.

Emma McArthur - New Wills and Estates Act


Emma McArthur - New Wills and Estates Act

Emma McArthur - New Wills and Estates Act

  • Full Name Full Name Comment goes here.
    Are you sure you want to
    Your message goes here
    Be the first to comment
    Be the first to like this
No Downloads


Total Views
On SlideShare
From Embeds
Number of Embeds



Embeds 0

No embeds

Report content

Flagged as inappropriate Flag as inappropriate
Flag as inappropriate

Select your reason for flagging this presentation as inappropriate.

    No notes for slide


  • 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