October 6, 2011

The New BC Wills, Estates and Succession Act (WESA) - What has changed?

Thomas E. Wallwork and Janet Freeman February 2014

A webinar for public librarians

Goals of this webinar

By the end of this workshop, you will be able to:

Explain some of the key changes of the new law, as well as important aspects that remain the same

Refer patrons to the updated resources available online and in print relating to the new law

Answer some common questions patrons have about wills

[Please note: we will not be covering the topics ‘living wills’ or advance directives today.]

Agenda

Introductions

Why a new law on wills?

What changes and what stays the same?

Resources

Question Period – your common questions about wills

Evaluation link

Today’s presenters

Janet Freeman LawMatters Program Coordinator, Courthouse Libraries BC

Thomas E. WallworkBarrister and SolicitorRichmond, BC

And many thanks to Kyle Armour | Training & Data Co-ordinator | Libraries and Literacy, Open Government and Community Partnerships Division | Ministry of Education for hosting the webinars!

A website featuring plain language legal information and education for the public in BC.

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Courthouse Libraries BC services for the public

What CLBC Can Help With

Law books and legal databases on public computers with case law, legislation and information about legal procedures.

Assistance from law librarians in-person, via telephone at 1.800.665.2570, and email: librarian@courthouselibrary.ca

Website courthouselibrary.ca features legal information aimed at legal community

Libraries in 30 courthouses across BC

All public libraries in BC have increased their print legal information collections through grants from LawMatters.

LawMatters provides training events and community legal information forums.

www.bclawmatters.ca and

www.bclawmatters.blogspot.ca

Workshop handouts: go to www.bclawmatters.ca

Click on Conference Materials page

A Cautionary Note This presentation provides legal information, not legal advice

Intent: to create a ‘highlight reel’ of the changes to WESA

Many of the concepts have been simplified for clarity

WESA as a ‘hotbed’ of potential litigation and legislative

‘tweaking’

Bottom line: if you, or someone you know, has a problem with

respect to succession – don’t go it alone. Referral sources are

relatively easy to come by, and include:

The Canadian Bar Association Lawyer Referral Service -

www.clicklaw.bc.ca/helpmap/service/1044

Access Pro Bono - www.clicklaw.bc.ca/helpmap/service/1040

Or, the Yellow Pages – while many lawyers charge a consultation fee, the

value derived from the consultation is extraordinary

Background to WESA

The current law of succession is badly outdated, extremely counterintuitive, and located in:

centuries of archaic common law the Supreme Court Civil Rules, and Several provincial statutes, namely:

The Wills Act The Wills Variation Act The Estate Administration Act The Probate Recognition Act The Probate Fee Act The Survivorship and Presumption of Death Act The Law and Equity Act The Insurance Act The Escheat Act Etc.,etc…

Background to WESA 2003 - the BC Law Institute (“BCLI”) initiates the

Succession Law Reform Project 2006 – the BCLI issues the Report on Wills, Estates

and Succession: A Modern Legal Framework

2009 – WESA passes third reading, is enacted into law

So… what will the legal landscape look like now? Centuries of archaic common law have been

tinkered with via legislation, and need to be evaluated in light of WESA

Revised rules in the Supreme Court Civil Rules WESA is in force, but does NOT repeal every piece

of legislation that touches on succession, although it does repeal quite a few

A Primer On What’s Changing (or Not): Existing Wills

WESA will apply to all wills where the testator (“will-maker”) dies after WESA comes into force on 18 March 2014

Don’t worry. Existing (valid) wills are ‘grandfathered’ in, even if they don’t meet the formal requirements under WESA. (s. 186(2))

If a will is revoked, either by the testator or by operation of law, WESA does not revive the ‘dead’ will (s. 186(3))

A Primer On What’s Changing (or Not): Existing Wills

Old Law (Wills Act) New Law (WESA)

For will to be valid: For will to be valid:

Testator must be 19 or older (usually)

Testator must be 16 or older

Will must be in writing Will must be in writing

Signed by the testator in the presence of two witnesses, who must also sign

Signed by the testator in the presence of two witnesses, who must also sign

A Primer On What’s Changing (or Not): Making A New Will

Old Law (Wills Act) New Law (WESA)

Getting married ‘kills’ your will.

Getting married does not ‘kill’ your will.

You need a divorce, or court ordered separation, before a gift to your (former) spouse is affected.

Any gift to your (former) spouse dies when you separate from your spouse.

If the will is not properly drafted or difficult to understand, all or part of the will could be struck out.

If the will is not properly drafted or difficult to understand, the Court can ‘fix’ the will, to a degree.

A Primer On What’s Changing (or Not): Making A New Will

Old Law (Wills Act) New Law (WESA)

If a beneficiary dies before you do, and your will is not properly drafted, their gift is distributed as if there were no will at all.

If your beneficiary dies before you do, and your will is not properly drafted, one of two things happens to that beneficiary’s gift:

-if that beneficiary is your sibling or descendant, the gift will pass to their descendants; or

-if your beneficiary is not a sibling or descendant, the gift will fall into the residue of your estate.

A Primer on What’s Changing (Or Not):Intestate Succession “Intestate succession” is what happens if someone dies without a

will

If there is no will, property does not automatically revert to the government

Currently, the Estate Administration Act provides for a detailed plan as to what happens if there is no will upon someone’s death

The WESA makes substantial changes to the rules of intestate succession, but there are more similarities than differences when looking at the big picture.

For the sake of simplicity and clarity, we’ll take a look at some of the most common situations with respect to people who die intestate

A Primer On What’s Changing (or Not): Intestate Succession

Old Law (Estate Administration Act)

New Law (WESA)

If there are no children, your spouse gets your entire estate.

If there are no children, your spouse gets your entire estate.

If you leave a spouse and one child, your spouse gets $65,000.00 off the top, and the remainder is split evenly between your spouse and your child.

If you leave a spouse and one child, and that child is the biological child of your and your spouse, your spouse gets $300,000.00 off the top, and the remainder is split evenly between your spouse and your child.

If your child is not the biological child of your and your spouse, your spouse’s initial ‘cut’ is reduced to $150,000.00.

A Primer On What’s Changing (or Not): Intestate Succession

Old Law (Estate Administration Act)

New Law (WESA)

If you leave a spouse and more than one child, your spouse gets $65,000.00 off the top, and 1/3 of the remainder, while the remaining 2/3 is split evenly among your children.

If you leave a spouse and more than one child, and all of those children are the children of you and your spouse, your spouse gets $300,000.00 off the top, as well as 50% of what is left. The remaining 50% is split evenly among your children.

If you leave a spouse and more than one child, and any of those children are not both you and your spouse’s children, your spouse’s initial ‘cut’ is reduced to $150,000.00.

A Primer On What’s Changing (or Not): Intestate Succession

Old Law (EAA) New Law (WESA)

If you die with a spouse and a house, your spouse gets a ‘life estate’ in the house.

If you die with a spouse and a house, your spouse has the option to purchase the house.

Complex ‘family tree’ determines who will take your estate

A differently-structured ‘family tree’ determines who will take your estate

A Word on ‘Spouses’

Perhaps the single most far-reaching change is how ‘spouses’ are defined:

Only a ‘spouse’ inherits under intestate succession Only a ‘spouse’ can challenge a will If someone ceases to be a ‘spouse’, they may lose

out on an existing will

A Word on ‘Spouses’

From WESA s.2 :

When a person is a spouse under this Act2  (1) (…) 2 persons are spouses of each other (…) if (…) (a) they were married to each other, or (b) they had lived with each other in a marriage-like relationship (…) for at least 2 years. (2) Two persons cease being spouses of each other (…) if [they separate.]

A Primer On What’s Changing (or Not): How Wills are Challenged

Not a lot has changed in this regard – and the Wills Variation Act has, by and large, been simply absorbed into the WESA

A Primer On What’s Changing (or Not): How Estates Are Administered

Old Law (Estate Administration Act)

New Law (WESA)

For intestate estates, most administrators must be “insured”.

“Insurance” is not automatically required, unless there are minors or disabled beneficiaries.

The EAA provides a list of potential administrators, but no ranking is given.

A specific ranking scheme of potential administrators is provided: spouses, then children, and so on.

A complex morass of rules, both explicit and implicit, govern most of the procedural aspects.

A brand new, slightly more complex, morass of rules has been enacted in the BC Supreme Court Civil Rules.

2 resources for background to WESA

1. www.ag.gov.bc.ca/legislation/wills-estates-succession-act/qa.htm

Resources for background to WESA cont’dwww.courthouselibrary.ca/training/HowToGuides/WESA.aspx

2.

Updated resources for WESA1. CBA/BC Dial a Law script Making a Will and

Estate Planning www.clicklaw.bc.ca/resource/1267

2. Updated Resources Cont’d: People’s Law School updated booklets

Available online in April at www.clicklaw.bc.ca – search for the title. Print copies may be ordered in April from www.publiclegaled.bc.ca

3. Updated Resources Cont’d: Clicklaw common questions will be updated March 31

4. Updated Resources Cont’d: Continuing Legal Education’s BC Probate and Estate Administration Practice Manual

Located in larger libraries and at all Courthouse Libraries BC branches, used for very in-depth questions:

Titles to weed from your collection

A Retention and Updating Guide for Wills and Estates Titles will be distributed soon by LawMatters, and will be available at www.bclawmatters.ca Law Books for Libraries section. Many thanks to Tom for advising us on the Guide.

Discussion and questions

Contact us

Thomas E. WallworkBarrister and Solicitor, Richmond, BC www.divorce-

bc.com tom@divorce-bc.ca 604 285 6369

Janet Freeman, LawMatters Program CoordinatorCourthouse Libraries BC www.bclawmatters.ca jfreeman@courthouselibrary.ca 1-800-665-2570 or 604-660-9204

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