by Lisa Collins | April 2, 2014
Earlier this week, we introduced the recent enactment of the Wills, Estates and Succession Act (WESA) in BC. Over our next few blog posts, we will highlight some of the key changes you should be aware of, and how they might affect your estate planning moving forward.
What is a Will?
Amendments contained in WESA will allow other documents (besides the Will itself) to have testamentary effect. This means that the court is given discretion in certain circumstances, to use a “record, document, writing or marking on a will or document”, including electronic data. These records or documents may not reflect the final intentions of the deceased person. The court has also been given the power to correct accidental errors or errors made by will drafters, if they failed to understand or properly carry out the will-maker’s instructions. Extrinsic evidence, including evidence of the will-maker’s intent, is required in this case.
When a person dies without a will, there are new rules that apply under WESA. Quite simply, the distribution of assets that would occur under the new legislation would NOT be favourable for anyone involved. Not to mention that estate planning itself also allows you to save taxes, ease administration and manage the assets of others. My best advice is to do your planning ahead of time, have a Will in place and not rely on the intestacy provisions.
Marriage No Longer Revokes a Will
Under the former legislation, when a person got married, the marriage automatically revoked their will. This is no longer the case under WESA.
However, a gift to a spouse, or appointment of a spouse as an executor, is revoked if after the Will is made the person ceases to be the will-maker’s spouse.
Definition of a Spouse
The definition of spouse is important for many aspects of WESA, including entitlement under a will, the right to vary a will and intestacy entitlements. WESA’s definition of “spouse” includes both legally married spouses and individuals who have lived together in a “marriage-like relationship” for at least two years. This includes same-gender relationships. Of even greater importance are the provisions which dictate when a person ceases to be a spouse, as this will impact their rights under WESA:
- Legally married spouses cease to be spouses when they separate and cause an interest in family property under the Family Law Act (“FLA”) to arise. Under FLA, each spouse has a right to a half interest in all family property upon separation. However, there is a ‘reconciliation’ exception within FLA that is also being proposed as an amendment to WESA. It says that spouses are NOT considered to have separated if they begin to live together again within one year, for the purpose of reconciling, and they continue to live together for at least 90 days thereafter.
- In the case of a marriage-like relationship, a person ceases to be a spouse when at least one person “terminate” the relationship. This means that spousal rights vanish overnight, and could result in significant unintended consequences due to a temporary separation or breakdown in the relationship. It is not yet clear how the proposed ‘reconciliation’ amendment may apply to these marriage-like relationships, especially if there has not been a physical separation.
In our next blog post, we will review some of the other important changes, including those relating to the new survivorship rules and multiple wills. If you have any thoughts or questions on this new legislation, please leave a comment below. As always, if you have questions about your own estate plan, feel free to contact me at any time.