ESTATE : WILLS ASSETS DISBURSEMENTS : BRITISH COLUMBIA LAW

SINCE TIME BEGAN

WILLS & ESTATES AND SUCCESSIONS : BRITISH COLUMBIA STATUTE

• BC ESTATE EXECUTOR INFORMATION : 2018

• Wills, Estates and Succession Act [Nov 27 2014 to MAY 3, 2016], S.B.C. 2009, c. 13 (“WESA”) and accompanying Probate Rules (Part 25 of the Supreme Court Civil Rules) (current / 2015) became law on March 31, 2014. WESA sets out the current law about when a will is valid, what happens if there is no will, and how the estate is distributed.

  If there is a will, the personal representative is an executor. The executor is a trustee, bound to act for the good of the estate, even though the executor may also be a beneficiary or have a personal interest in the estate assets.
  If there is no will, the deceased is said to have died intestate. The personal representative must distribute the estate to specific relatives of the deceased following the order of intestate succession as set out in WESA (sections 19-25).

• Parts List

  • Table of Contents - Supreme Court Civil Rules
  • Parts 1 to 9
  • Parts 10 to 20
  • Parts 21 to 24
  • Part 25
  • Appendix A
  • Appendix A.1
  • Appendix B
  • Appendix C

What are the general transition rules for the Wills, Estates and Succession Act?

Generally, WESA applies to a deceased’s will or estate if they died on or after March 31, 2014.

The Estate Administration Act, Wills Act, and other legislation replaced by WESA apply to the deceased’s estates if they died before March 31. 

Does the new law apply to wills that have already been written?

If a person died on or after March 31, 2014, WESA applies to their will, regardless of when the will was made. 

However, a will revoked by marriage under the old act is not revived by the Wills, Estates and Succession Act, even if the person who made the will died after March 31, 2014.

WESA does not apply to a will if the person who made the will died before March 31, 2014. 

How to make a valid will : Current version: in force since Jan 23, 2017 : see here retroactive application of changes (applies to pre-existing wills) How does the new act affect me?

1. Among its benefits, the new act:
2. clarifies the process of inheritance when a person dies without leaving a will;
3. clearly outlines the sequence in which to look for heirs to a person’s estate;
4. provides the courts with more latitude to ensure a deceased person’s last wishes are respected; 
5. clarifies obligations relating to property inheritance in the context of Nisga'a and Treaty First Nation lands; and
6. lowers the minimum age at which a person can make a will from 19 to 16 years old. 

Do existing wills need to be re­written?

1. WESA does not invalidate any wills that were written before it came into effect. 
2. However, the Act affects all wills no matter when they were written. (See below).
3. Some laws governing wills have changed, such as whether marriage revokes a will or whether gifts a will-maker gives a particular person during the will-maker’ life are deducted from gifts that person receives under the will-maker’s will. 
4. People who already have a will may wish to sit down with their lawyers to ensure their wishes are upheld in light of these changes to how wills are interpreted.

"will" means

(a)a will,

(b)a testament,

(c)a codicil,

(d)an appointment by will or by writing in the nature of a will in exercise of a power,

(e)anything ordered to be effective as a will under section 58 [court order curing deficiencies], or

(f)any other testamentary disposition except the following:

(i)a designation under Part 5 [Benefit Plans];

(ii)a designation of a beneficiary under Part 3 [Life Insurance] or Part 4 [Accident and Sickness Insurance] of the Insurance Act;

(iii)a testamentary disposition governed specifically by another enactment or law of British Columbia or of another jurisdiction in or outside Canada;

Division 5 — Curing Deficiencies and Rectification of Wills

Court order curing deficiencies

58   (1)In this section, "record" includes data that

(a)is recorded or stored electronically,

(b)can be read by a person, and

(c)is capable of reproduction in a visible form.

(2)On application, the court may make an order under subsection (3) if the court determines that a record, document or writing or marking on a will or document represents

(a)the testamentary intentions of a deceased person,

(b)the intention of a deceased person to revoke, alter or revive a will or testamentary disposition of the deceased person, or

(c)the intention of a deceased person to revoke, alter or revive a testamentary disposition contained in a document other than a will.

(3)Even though the making, revocation, alteration or revival of a will does not comply with this Act, the court may, as the circumstances require, order that a record or document or writing or marking on a will or document be fully effective as though it had been made

(a)as the will or part of the will of the deceased person,

(b)as a revocation, alteration or revival of a will of the deceased person, or

(c)as the testamentary intention of the deceased person.

(4)If an alteration to a will makes a word or provision illegible and the court is satisfied that the alteration was not made in accordance with this Act, the court may reinstate the original word or provision if there is evidence to establish what the original word or provision was.

Rectification of will

59   (1)On application for rectification of a will, the court, sitting as a court of construction or as a court of probate, may order that the will be rectified if the court determines that the will fails to carry out the will-maker's intentions because of

(a)an error arising from an accidental slip or omission

How to make a valid will : 

"will" means

(a) a will,

(b) a testament,

(c) a codicil,

(d) an appointment by will or by writing in the nature of a will in exercise of a power,

(e) anything ordered to be effective as a will under section 58 [court order curing deficiencies], or

(f) any other testamentary disposition except the following:

(i) a designation under Part 5 [Benefit Plans];

(ii) a designation of a beneficiary under Part 3 [Life Insurance] or Part 4 [Accident and Sickness Insurance] of the Insurance Act;

(iii) a testamentary disposition governed specifically by another enactment or law of British Columbia or of another jurisdiction in or outside Canada;

"will-maker" means a person who makes a will

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How to make a valid will : Nov 27 2014 to MAY 3, 2016 :

37  (1) To be valid, a will must be

(a) in writing,

(b) signed at its end by the will-maker, or the signature at the end must be acknowledged by the will-maker as his or hers, in the presence of 2 or more witnesses present at the same time, and

(c) signed by 2 or more of the witnesses in the presence of the will-maker.

(2) A will that does not comply with subsection (1) is invalid unless

(a) the court orders it to be effective as a will under section 58 [court order curing deficiencies],

(b) it is a will recognized as valid under section 80 [validity of wills made in accordance with other laws], or

(c) it is valid under another provision of this Act.