The Wills, Estates and Succession Act has significantly changed some portions of British Columbia law affecting wills, estates and inheritances. If you expect to inherit property in the future — or if you’ll leave property to heirs in a will — it’s important to understand the possible ramifications.

Lawmakers adopted WESA to modernize rules related to estates and wills. Since taking effect in 2014, the new law has helped resolve legal questions related to inheritances. It also has provided more leeway for courts to comply with the last wishes of deceased individuals.

What do you need to know about the law and how it might affect your inheritance or estate?

Effects for Spouses

WESA replaced several previous laws, including the Wills Act, Estate Administration Act, the Wills Variation Act, the Law and Equity Act, and the Survivorship and Presumption of Death Act. The new law also amended more than 40 existing statutes, and anyone over the age of 16 can now create a will in British Columbia.

One significant change relates to the ways spouses are treated under estate law. The previous Wills Act provided that if someone signed a will before they got married, the will automatically was revoked upon marriage unless it included a specific clause mentioning the impending marriage.

Under WESA, wills are not automatically revoked if the creator of the will marries.

The former law also provided that married people would be disinherited from the will of their spouse if they divorced or the marriage was annulled, but disinheritance didn’t apply to common-law spouses.

Under the new law, common-law spouses automatically become disinherited if the relationship dissolves. Married people are disinherited if the couple lives apart for more than two years and at least one member of the couple intends to live apart permanently. Spouses also are disinherited if the couple separates, and they remain disinherited if they get back together unless the will is amended to address the change.

Changes to Inheritance Procedures

It’s important to understand that the new law changes some of the rules relating to inheritances.

Under the former law, a surviving spouse could inherit property under the first spouse’s will — even if the surviving spouse died soon after. The new rules provide that an individual must survive for five days or more to receive a gift via a will.

When no heirs appear to have a claim on property of a deceased person, for example if the heirs died before the maker of the will,  and the will maker has no family members who would be entitled to share in the estate if the will maker had died without a will (intestacy) the estate now goes to the Crown. Under the former law, the executor would receive the estate’s assets in such a situation.

If a will includes land to be distributed among more than one beneficiary but doesn’t specify a co-ownership arrangement and the land can be divided into parcels, the new system specifies that beneficiaries accept the land as tenants in common in proportion to their interests.

Previously, someone who inherited mortgaged land would be required to pay the mortgage debt and would receive only the value of the land minus the debt. The new system extends the principle to all types of personal property. For any personal property with debts, the heir now becomes liable for the debt.

The new law also addresses the order in which assets are sold to pay off debts on an estate. Previously, personal property was sold first, followed by real property. Under the new rules, real property and personal property can be sold at the same time. The new law also simplifies categories of gifts to make it easier for heirs to use assets toward debt payment.

Wills Variation

It remains possible under WESA for a spouse or child who receives nothing or only a relatively small inheritance under a will to ask the court to vary the will on the basis that the will maker failed to make adequate provision for the proper maintenance and support of that person.  Where such a claim is made, the court will have to decide whether the will satisfied the will maker’s legal and/or moral obligations to the claimant in accordance with the legal principles set down in the seminal Supreme Court of Canada decision of Tataryn v. Tataryn Estate.

Challenging a Will Under WESA

WESA has simplified some rules relating to inheritances, but the law remains extremely complex and nuanced. If you believe that you have been treated unfairly in the disposition of a loved one’s will, it’s important to work with a lawyer who is experienced with estate litigation.

For a free initial telephone consultation, please contact McLarty Wolf at 604-688-9542.

Most people understand the benefits of a will and the problems that can arise in the absence of this critical document. However, many Vancouver residents still do not have a will directing the final disposition of their assets.

What should you do if your parent dies without a will? Here’s what you need to know about how provincial law addresses intestacy.

Intestacy Under Current Law

In British Columbia, the Wills, Estates and Succession Act dictates how estates are distributed when individuals die with no will in place.

When an individual with a spouse but no children dies, the law is simple: The intestate estate passes solely to the spouse. The rules become more complicated when the couple has children together or one member of the couple has children from a previous relationship.

The law states that if an individual dies without a will and has both a surviving spouse and descendants, household furnishings and “a preferential share” of the estate go to the spouse.

WESA has changed the way assets are distributed when a deceased individual has a surviving spouse but no will. Under previous law, in the absence of a will, a spouse received the first $65,000 of the estate, while now the spouse receives the first $300,000. However, if the deceased person has children from a previous relationship, the current spouse receives only $150,000.

If the value of the estate is less than the preferential share in either circumstance, the spouse receives the entire intestate estate. If the value of the estate is the same or more than the preferential share, any remaining value after the spouse’s portion is distributed evenly between the spouse and the deceased person’s descendants.

Procedures for Unmarried Individuals

WESA also specifies procedures when an individual dies with no surviving spouse but with other family members still living. If such an individual dies without having completed a will, the law requires that assets go to the intestate individual’s descendants.

If there are no surviving descendants, the assets pass to the deceased individual’s parents, then to any surviving descendants of the parents. In the event that no children, parents or descendants of parents are surviving, the estate goes to grandparents or their descendants.

The laws relating to intestate succession can be complex in certain family situations, extending even to great-grandparents and their descendants. If there are no relatives entitled to the estate under the law, the entire estate goes to the government.

Distribution of an Estate to Intestate Heirs

If your deceased parent does not have a spouse and has died without a will, the estate should be distributed to you. If you have siblings or other relatives who are descendants of your parent, the assets will be distributed among you.

For children under the age of 19 whose only surviving parent dies with no will, the court appoints someone to serve as executor and as a guardian for the children.

If the parent does not have a surviving spouse, another relative, friend or other eligible individual can apply to serve as administrator for the estate. If no one comes forward to serve, the Public Guardian and Trustee of British Columbia may serve as administrator.

The administrator is required to find all assets that belong to the estate and provide for their security; for instance, by safeguarding important documents like titles or continuing insurance coverage. In addition, the administrator locates heirs and has assets appraised and sold or transferred to heirs as their portion of the estate.

Responsibilities for the administrator also include handling tax matters, debts, and legal and accounting fees for the estate, along with forwarding any remaining assets to heirs. If you are an heir, you should receive a report from the administrator including an accounting of all money received and paid from and to the estate, any fees paid, and information about how the estate will be distributed.

Get Assistance With an Intestate Inheritance

Dealing with the death of a parent is an emotional time, and the lack of a will can add legal complexity to the situation. If you’re currently involved in the disposition of an intestate estate or feel that you have been treated unfairly, it’s important to work with an experienced estate litigation lawyer. For a review of your case, please contact McLarty Wolf at 604-688-9542.

Property disputes between brothers and sisters or other family members can cause hostility and long-term or permanent damage to relationships. Whether property is jointly inherited or purchased, ensuing conflict and controversy can lead to indelible problems.

By working with a lawyer experienced in family property disputes, you gain the best opportunity to resolve the cause of the dispute as quickly and effectively as possible.

Inherited Property

The passing of land to heirs under a will or to surviving joint tenants after a family member dies, creates the potential for a dispute over the future management and ownership of the land.  This is because two people, even if they share the same goals for the land when they acquire it, may, as time goes on, develop diverging ideas as to what should happen to the property.  When the land is inherited, the heirs may from the outset have very different plans given each of the new owners’ financial needs and life plans.

In addition, given the emotional ‘baggage’ that every family has, there is also the potential for family members to differ on what the deceased parent wanted with respect to the property and the heirs themselves may carry longstanding resentments into their new relationship as co-owners of their parents family home or vacation property.

Although many families can amicably deal with these issues including making consensual decisions on the sale or continued joint ownership of land, some do not with the result that disputes cannot be resolved without the assistance of a lawyer.

Property Purchased with a Family Member

In some cases, siblings, cousins or other family members knowingly and willingly purchase property together. The reasons for such purposes are varied and include investing in real estate, sharing a vacation property and even shared ownership and occupation of a residence in locations such as Metro Vancouver where the single family housing supply is limited and very expensive.

However, like inherited property, these joint purchase and ownership arrangements can lead to disagreement and disputes and being related by blood to a co-purchaser is no insurance against a deal going sour.  Again, the assistance of a lawyer with experience in resolving those disputes involving family members over land may be required.

Land Ownership Categories

If you are ‘put on title’ or decide to buy property with family members, understand that you are entering into a situation of co-ownership.  Types of co-ownership include:

• Joint Tenancy, where the owners share equally in the ownership of the land and when one co-owner dies, that person’s interest in the land automatically transfers to the surviving co-owner(s).   In joint tenancy, ownership transfers without going through probate, and neither party can ‘will’ their part of the property to heirs.  Tenancy in Common, which can give owners an equal or differing share. In tenancy in common, one owner can sell their portion without getting permission from the other owners. This type of ownership provides for having more than two owners, and each owner can sell their share at any time and to anyone, unless the contract provides for different rules.  In addition, if a tenant in common dies, his or her interest in the land forms part of their estate and will pass to the heirs of that person.

Joint Tenancy Poses Special Problems

Individuals who own property sometimes use joint tenancy to add a family member to the title as an estate planning tool. If one of the parties dies, the other person becomes the sole owner.

Many cases related to joint tenancy have worked their way through the Canadian courts, in part because each involved property owner can end a joint tenancy and end survivorship rights. Family members sometimes sue over misunderstandings or to retain their control of the property.

In 2013, for example, the Court of Appeal for British Columbia heard a case in which a couple asked their son to build a house on their investment property, and they set up a joint tenancy that they later severed following a conflict.

The parents believed their son would eventually inherit the property, but he believed it was a gift to pass to him immediately even though his parents were alive. The parents initiated legal action, and the court ruled in their favor. However, the relationship between parents and son deteriorated.

Family Property Dispute Lawyers Can Assist You

If you’re involved in a family property ownership dispute with a sibling or another family member, you need experienced legal representation to help you resolve the situation as quickly as possible. To schedule a consultation, please contact McLarty Wolf.

Throughout life, many situations arise in which you may need to appoint someone to act for you in legal and financial matters. Purchasing property, executing contracts, and attending to your personal affairs if you become disabled all stand as reasons you might want to give a designated representative legal authority to act for you.

If you believe you may need a legally designated representative in the future, it’s helpful to understand the types of power of attorney: enduring and general. Your lawyer can assist you in establishing the appropriate power of attorney for your unique circumstances.

General Power of Attorney?

A general power of attorney document designates a representative you choose — known as an “attorney” — to handle your legal and financial matters. The Power of Attorney Act requires that a designated attorney must be a competent adult, at least 19 years of age. The law defines competency as understanding the purpose and possible outcomes of the power of attorney document at the time of signing.

You might use a general power of attorney document if you are traveling outside the country and want to designate someone in Canada to handle your financial matters while you are away. Often, friends or family members are appointed as attorneys in general power of attorney agreements. A lawyer, accountant or other professional also can be named as power of attorney.

General powers of attorney become invalid if the individual who requested the designation dies or becomes mentally incapacitated. You also can revoke the power of attorney with a written notice or by including an ending date or precipitating event in the power of attorney agreement.

Enduring Power of Attorney

As part of estate planning, many adults wish to appoint an individual who can take over their financial and legal affairs if they are unable. An enduring power of attorney document allows you to give authority to your designated representative should you become mentally disabled.

Power of attorney documents must specify whether authority is granted only if you become incapable or, in addition, while you retain mental capacity. The law assumes that adults can make their own decisions about their legal and financial affairs, and it deems adults incapable only if they cannot understand those affairs or the essence of the power of attorney agreement.

Choosing a Representative for Enduring Power of Attorney

An individual you name as enduring power of attorney should be someone you trust, since that person will have the authority to make critical legal and financial decisions for you. The law stipulates that the individual you choose:

• Cannot be a paid health care provider.
• Cannot be an employee in a facility in which you live and receive health care or personal care services.
• Can be your child, parent or spouse but must have reached adult age to act as power of attorney.

You also can name more than one individual as enduring power of attorney. If you name more than one person, they can be designated for different areas. If they are named for the same area, they must agree before acting on your behalf unless you stipulate otherwise.

Power of Attorney Problems

If an attorney has been acting dishonestly, negligently or outside of his or her authority, his or her authority can be easily revoked if the person who granted the power remains mentally capable of understanding the nature and consequences of doing so. However, if the person who granted the power no longer has the necessary mental capacity to make that decision, it may be necessary to apply to the Court to have a legal guardian known as a committee appointed in place of the attorney. There may be other options available to deal with a delinquent attorney including reporting the matter to the Public Guardian and Trustee. In addition, if the attorney has caused financial losses to the person who granted the power of attorney, a lawsuit may be brought against the attorney for damages.

For a consultation with a lawyer regarding a power of attorney problem, please contact McLarty Wolf at 604-688-9542.

A “Power of Attorney^[1]” is a legal document through which one person, known as “the donor”, authorizes a second person, known as “the attorney”, to act on their behalf.  The document grants power to the attorney to step into the donor’s shoes and to act on their behalf relative to legal and financial matters.

The individual named in a Power of Attorney has a legal duty to follow the direction of the person giving the authority, or to act as a fiduciary if the person can no longer direct them and to act honestly and in good faith. The attorney must also exercise the care, diligence, and skill of a reasonably prudent person and otherwise act in the donor’s best interest.

Misuse of Powers of Attorney

The Canadian Centre for Elder Law provides that the misuse of powers of attorney^[2] is one of the most commonly reported forms of abuse of older people, and occurs in many different ethnocultural communities.  Some examples of power of attorney misuse include:

• Using the power of attorney for personal gain instead of for the elder’s benefit
• Coercing or forcing an elder into creating a power of attorney
• Forging the elder’s name on a power of attorney, cheques, and other documents
• Withdrawing money from financial accounts without permission
• Treating the elder’s money and property as if it belonged to the attorney

Remedies for Power of Attorney Abuses

Where financial abuse has occurred, there are several types of remedies including:

• Ask the court to order an accounting of how money was spent.
• File a lawsuit against the named attorney.
• Ask the court to declare the donor to be incapacitated and appoint a guardian known as a committee.

Speak to a Vancouver Power of Attorney Lawyer

Legal disputes where a named attorney has abused or violated the terms of a Power of Attorney can be complicated making it important to speak to a Vancouver Power of Attorney lawyer.  The lawyers at McLarty Wolf are committed to helping those who are victims of financial abuse.  To discuss your case with one of our lawyers, call our office today at 604-688-9542 or send us an email via our online contact form.