Successfully reported this slideshow.
We use your LinkedIn profile and activity data to personalize ads and to show you more relevant ads. You can change your ad preferences anytime.
WILLS, ESTATES AND SUCCESSION                          ACT                             Emma A. McArthur             Estate...
Wills, Estates and Succession Act                                  (“WESA”)• Introduced September 14, 2009• Received Royal...
Effect?• Will repeal and consolidate 4 significant  statutes and amend many others• Accompanied by new and amended  Suprem...
Background:• 1980’s – Law Reform Commission of BC  publishes a series of reports and  recommendations• 2003 – B.C. Law Ins...
Continued ...• 5 subcommittees established involving  practising lawyers, academics, court  officials, AG representatives ...
Highlights             - some of the significant changes1. Definitions  •   “Testator” and “testatrix” replaced with      ...
2. New minimum age to make a valid Will:   • 16                                           7
3. New minimum age to make a valid Will:   • 16                                           8
4. Revocation of Wills:   •  Automatic revocation of Wills by a      subsequent marriage of will-maker is      abolished  ...
5. Definition of “Spouse”   • Marriages & marriage-like relationships     of at least 2 years   • Includes opposite and sa...
6. Specifies when persons will   cease to be considered spouses: Married? •   When they’ve lived separate and apart for at...
 Common law? > When one or both persons   terminate the relationship                                12
7. Spousal share of an intestate estate:  •   No descendants? Spouse takes all  •   Descendants? Spouse receives:      > h...
8. Calculation of Spousal Preferential   Share  • If all descendants of deceased are also    descendants of spouse: $300,0...
9.   Parentelic Distribution Scheme Adopted     • No spouse, descendant, parent or       descendant of a parent?     • Est...
10. New Survivorship Rules  •   If a person does not survive a      deceased person by 5 days, that      person is deemed ...
11. Simultaneous death?  •   Presumption that younger person      survived older person is abolished  •   Each person is c...
12. Court Power to Cure Deficiencies  • Includes deficiencies in execution    formalities  • But court may also give testa...
Continued ...  • “Record” is broadly defined - includes    electronic data that can be read and    reproduced  • Test is w...
13. Expanded Court Power to Rectify Wills  • To correct accidental errors and    misunderstandings and failure by the Will...
14. Secured Debt Passes with Gifted    Property/Assets • Property or asset is gifted to a beneficiary and   is subject to ...
15. Administration of Small Estates  Will probably be defined to mean:    >$50,000 and no interest in land    >Applies to ...
Continued ...    >Procedure not yet clear    >Likely that an applicant who falls within a     specified class will give ne...
16. Security Where Administration is Sought   • Now – presumption is that security must be      posted by administrator   ...
17. Beneficiary Designations  • Now – statutory provisions governing    beneficiary designations for insurance are    diff...
Continued ...  • WESA makes the provisions applicable to    RRSPs, RRIFs and other benefit plans    the same  • Will be ab...
Continued ...  • “Nominee” will be able to make a    designation consistent with a prior    designation of beneficiary mad...
18. Common Law Presumptions Abolished   i.e.     >Gift to child is an advance of that child’s       inheritance    >Legacy...
19. What Hasn’t Changed? • Wills Variation Act substantially the same   despite significant changes recommended • Some min...
Emma McArthur - New Wills and Estates Act
Upcoming SlideShare
Loading in …5
×

Emma McArthur - New Wills and Estates Act

757 views

Published on

Emma McArthur - New Wills and Estates Act

  • Be the first to comment

  • Be the first to like this

Emma McArthur - New Wills and Estates Act

  1. 1. WILLS, ESTATES AND SUCCESSION ACT Emma A. McArthur Estate Planning Council of Abbotsford May 16, 2012
  2. 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. 3. Effect?• Will repeal and consolidate 4 significant statutes and amend many others• Accompanied by new and amended Supreme Court Civil Rules 3
  4. 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. 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. 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. 7. 2. New minimum age to make a valid Will: • 16 7
  8. 8. 3. New minimum age to make a valid Will: • 16 8
  9. 9. 4. Revocation of Wills: • Automatic revocation of Wills by a subsequent marriage of will-maker is abolished 9
  10. 10. 5. Definition of “Spouse” • Marriages & marriage-like relationships of at least 2 years • Includes opposite and same-sex relationships 10
  11. 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. 12.  Common law? > When one or both persons terminate the relationship 12
  13. 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. 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. 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. 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. 17. 11. Simultaneous death? • Presumption that younger person survived older person is abolished • Each person is considered to have survived the other 17
  18. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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

×