A new law, the “Wills, Estates and Succession Act ” (“WESA”), comes into force in British Columbia on March 31, 2014. It replaces four existing statutes that currently govern wills and estates with a single comprehensive statute. The WESA is the result of significant review and consultation and this new law updates and modernizes this area of law.
What does the WESA mean for lawyers and their clients?
Much of the WESA is long overdue law reform that corrects anomalies in the law and eliminates obscure and outdated laws that made sense in feudal times but are not relevant in today’s society. For lawyers working in the area, many of the reforms are welcome and will simplify and clarify the law. For most clients and situations there will be little obvious change.
Here are some examples of the minor reforms brought about by the WESA:
- If a will is contested in court proceedings, the evidentiary rules have been updated to clarify what evidence is admissible to prove the meaning of a Will.
- Under the current law there are exceptions that permit a legally married minor to make a will and also permit minors who were “mariners or seamen at sea” to make a will. These highly specific exceptions have been abolished under the WESA in favour of a universal rule that permits anyone to make a will at age 16. Under WESA a subsequent marriage no longer invalidates a will, which is the case under the current law.
- Speaking of marriage, while the present law already acknowledges some unmarried couples and gives them an “equivalent to married status”, the WESA further refines the definition of “spouse”. The WESA brings the effect of estate law on the treatment of a “common law” relationship more in line with recent reform of family law, so there is consistency in treatment under both laws.
Some examples of more significant and substantive impacts are as follows:
- The WESA includes reform to what happens if a person dies without a will. Under current law when a person dies without a will, their spouse is given a lifetime interest in the matrimonial home. The lifetime interest is abolished under the WESA but the surviving spouse now has the option to purchase the family home on certain conditions, and the Court can in the case of hardship prescribe certain alternative arrangements.
- Many law reformers wanted changes to British Columbia’s “Wills Variation Act.” This law permits spouses and children, including adult independent children, to challenge a will if they were dissatisfied with what had been left to them. They can, in effect, ask the court to rewrite that will in their favour. Many felt this law went too far in restricting a person’s freedom to make their own will. Law reformers had advocated significant changes to the broad reach of the Wills Variation Act. However the government elected not to make such changes and the existing law has been carried over into the WESA.
- One change in particular is very controversial amongst lawyers but we will have to wait and see how the courts deal with its effect. This is section 58 of the WESA. Under the current law, which continues under the WESA, wills have always been required to meet certain formal requirements of signature and witnessing. Section 58 however is entirely new and allows the court, on application, to relax these formalities. Section 58 could permit almost any document or record, including electronic records, to be considered and given effect as a person’s last will even if it has not been signed by the will maker. Some lawyers fear this will open the floodgates to court applications and costly lawsuits brought by disgruntled beneficiaries. Claimants could argue that all manner of letters, emails, scraps of papers, videos etc. are in fact the person’s last will and should be treated as the last will, or as an amendment to an actual will. It remains to be seen how this section will affect wills and estate law and practice.
Do people need to prepare new wills because of the WESA?
The short answer is, “No”. The WESA does not invalidate existing wills. Wills properly made prior to the WESA are preserved and remain valid under the WESA. However, everyone is always encouraged to read over their existing will from time to time to ensure it reflects their current intentions. They should do this at least every five years and this change to the law serves as a reminder that circumstances and the law change. For the vast majority of situations there is no need to revise a will as a result of the WESA.
If it is time for you to review and update or change your estate plan and will, please contact one of the lawyers in our Wills, Trusts and Estates Practice Group and we will be happy to assist.