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1. The Wills, Estates and Succession Act (WESA) replaced the Wills Act, the Wills Variation Act, the Estate

Administration Act and the Probate Recognition Act on March 31, 2014

2. The terms “testator/testatrix” have been replaced by “will-maker”

3. Validity: You must be 16 to make a Will, a Will must be in writing, signed by the will-maker at the end in the

presence of 2 witnesses, and 2 witnesses sign

a. Otherwise, Will is invalid unless the court orders that the Will is effective – the former strict

compliance for validity is gone however:

i. Now depends on the court determining that the record or document represents the

deceased person’s testamentary intentions

ii. A record includes an electronic document if it can be read by a person and can be

reproduced in a visible form, e.g. printed out on paper

iii. A court could accept an email, text message, bits of paper or notes as a Will

iv. To determine intention a court might even consider a video recording of the deceased

person making a note of his or her wishes or expressing them for the video

v. The list of what a court might consider and accept as the deceased person’s testamentary

intentions is wide open

4. Marriage no longer revokes a Will (for marriages taking place on or after March 31, 2014).

5. Separation: Subject to a contrary intention expressed in the Will, a gift in a Will to someone who is or

becomes a spouse, is revoked if the Will-maker and his or her spouse cease being spouses:

a. a couple ceases to be spouses if:

i. they are married and an event occurs that causes an interest in family property to arise, i.e.

the parties separate

ii. they are in a marriage-like relationship (“common law”) and one or both terminate the

relationship.

b. If spouses reconcile within one year after separation and continue to live together for a period

totaling at least 90 days, a gift under a Will is not revoked.

c. A separated spouse no longer has any entitlement to the deceased former spouse’s estate if the

deceased spouse has died without a Will.

d. A separated spouse no longer has the right to apply to vary the deceased former spouse’s Will.

6. Intestacy: Dying without a Will – how is the estate divided up? Who inherits?

a. Spouse and no descendants – spouse gets it all

b. Spouse and descendants – spouse gets household furnishings and ‘preferential share’

i. All descendants are descendants of spouse and deceased, preferential share is at least

$300,000

ii. All descendants are not common to the spouse and the deceased, preferential share is

$150,000

iii. Once preferential share paid out, 50% of remainder to spouse and 50% to descendants no

matter how many there are

iv. If there are two or more spouses, the spouses must agree on the division or the court will

decide

c. No spouse but descendants or relatives

i. Descendants

ii. Parents in equal shares

iii. Descendants of parents

d. Grandparents, or descendants of grandparents

i. ½ to one side

ii. ½ to the other side

e. Great grandparents or descendants

f. Limit on degrees of relationship that qualify as intestate successors – other than descendants more

than four degrees of separation from deceased are excluded

g. If no heirs, the estate escheats to the Crown

h. Application for probate requires notice to intestate successors so you need to know who is included

i. Intestate successors must consent to distribution of an estate if distribution proposed within 210

days of grant of probate or administration

7. The Spousal or Matrimonial Home: On an intestacy or where there is a Will but the spousal home is not

subject to a gift:

a. The spouse has 180 days after grant to exercise the right to buy the home in whole or in part in

satisfaction of the spouse’s interest

8. Undue Influence:

a. If A claims that a Will or a provision resulted from B being in a position where there was a potential

for dependence or domination of the will-maker and that B used that position to unduly influence

the will-maker to make the Will or provision, A only has to establish that B was in a position where

that potential was present.

b. The executor or B then has the obligation to prove that B did not exercise undue influence.

c. Burden of proof has shifted making it easier for plaintiffs to make (and succeed in) undue influence

claims.

d. The limitation period to file a claim is 180 days

Contact us for issues relating to wills & estates in British Columbia.

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