Transcript Document

The New BC Wills, Estates and Succession
Act (WESA) - What has changed?
A webinar for public librarians
Thomas E. Wallwork and Janet Freeman
February 2014
October 6, 2011
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. Wallwork
Barrister and Solicitor
Richmond, 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!
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events and community legal
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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The current law of succession is badly outdated, extremely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:
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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 (“willmaker”) 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 Any gift to your (former)
ordered separation, before spouse dies when you
a gift to your (former)
separate from your spouse.
spouse is affected.
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 If you die with a spouse and
a house, your spouse gets a a house, your spouse has
‘life estate’ in the house.
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 Act
2 (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’d
2. www.courthouselibrary.ca/training/HowToGuides/WESA.aspx
Updated resources for WESA
1. 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. Wallwork
Barrister and Solicitor, Richmond, BC www.divorce-bc.com
[email protected]
604 285 6369
Janet Freeman, LawMatters Program Coordinator
Courthouse Libraries BC www.bclawmatters.ca
[email protected]
1-800-665-2570 or 604-660-9204
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