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 The previous Wills Act provided that if someone signed a will before they got married, the will automatically was revoked upon marriage unless it included a specific clause mentioning the impending marriage.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.
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.