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Wills & Estates Law in B. C.
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Estate Litigation / Wills Disputes

Michael Mark, experienced wills disputes and estate litigation lawyer in Victoria BC

A will sets out in writing how to deal with all of a person's property upon death.

Your will may be the most important document you will ever prepare.  Yet nearly half of all Canadians don't have one.

IMPORTANT NOTE FOR UPCOMING 2014
WILLS, ESTATES & SUCCESSION ACT

It is anticipated that the Wills, Estates and Succession Act (the "WESA") will come into force in British Columbia in early 2014.  It will change the law in British Columbia regarding wills, estates, succession and the process by Grants of Probate of a will and Grants of Administration of an estate are issued.  THIS IS NOT YET THE LAW IN BRITISH COLUMBIA. [as of June 2013 date of this update]

The WESA will replace the existing British Columbia Estate Administration Act, the Probate Recognition Act, the Wills Act and the Wills Variation Act.  This list is not exhaustive and is no way intended to be a comprehensive list of the up-coming changes.

With Regard to wills:

  • the courts will have greater power to relieve against the consequences of a breach of the formal requirements for the signing of and the witnessing of a will;
  • there will be an expanded definition of what constitutes a "Will" and an expansion of the basis upon which a will may be formally valid;
  • a subsequent marriage of a person after the person has made a will does not automatically revoke the will;
  • a gift to a person witnessing a will or to that witness's spouse will not automatically be void, a court may declare the gift to be valid;
  • "informal wills" made by military personnel on active service or mariners at sea will be abolished.

With regard to intestacy, where there is no will:

  • there will be an increased spousal share that varies depending upon whether the children of a deceased are also the children of the spouse;
  • the preferential share of a spouse will be increased from the current $65,000;
  • the spouse will no longer have a life estate in the spousal home but will have the right to acquire the spousal home within 180 days of the grant, if the deceased had both a spouse and intestate descendants;
  • the scheme for determining the distribution of an intestate's estate will change from one based on degrees of "consanguinity" to a "parentelic" system based on the line of descent from the closest common ancestor of the deceased and the relative in question;
  • the legislation includes a priority list of potential administrators, starting with the deceased's spouse or nominee, followed by a child of the deceased having the consent of a majority of the deceased's children;
  • the administrator need not post security except where a minor or incompetent person has an interest in the estate or where an interested person applies to the court.

Other changes of substance include:

  • the definition of "spouse" for the purposes of WESA and a definition of when two persons are no longer spouses;
  • the rules on "survivorship" have been significantly changed, so that in a case of simultaneous death, the younger will not be deemed to have survived the elder but each person will be considered to have survived the other
    in the case where two persons who owned property as joint tenants died simultaneously, the property will be treated as though it were held by them as tenants in common;
  • if a person fails to survive a deceased by five days, that person is deemed to have died before the deceased for all purposes affecting the deceased's estate or property which the deceased was competent to give by will to another

With regard to procedural matters, there will be new rules or regulations on how a representation grant may be obtained.  The "Notice"e; given to beneficiaries and intestate successors would contained prescribed language advising of their possible rights in relation to the estate and the existence of limitation periods for pursuing those rights.  Instead of the current provision which permits "Notice" to be given almost concurrently with the filing of an application for a Grant, a new notice period of 21 days between sending the "Notice" and submitting the application for filing would be required.

There will be a new procedure for dealing with small estates (probably under $50,000) which do not include real property.  There will be no formal grant of probate or administration but a personal representative would file a statutory declaration in the Probate Registry.  The Probate Registry will merely enter a record of the filing of the small estate declaration in the civil registry system and stamp and return a copy to the personal representative.


Note: the above update is NOT to be seen as legal advice, it is to assist the public viewer about anticipated changes in 2014 to the law regarding Wills and Estates.  For the most current information about the law and preparing a will, please go to a lawyer experienced in the area of wills and estates law, for a consultation and assistance in updating or preparing your will.  Thank you for visiting Lawyers-bc.com 2013.06.06 bcp/lbc

Other reference sources

Learn more about the law:  executors and guardians, beneficiaries, types of gifts, and preparing a will.



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This page last updated: 2013.06.06
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