On March 31, 2014, the Wills, Estates and Succession Act, (SBC 2009, c. 13), will repeal and replace the following statutes:
- Estate Administration Act, RSBC 1996, c. 122;
- Probate Recognition Act, RSBC 1996, c. 376;
- Wills Act, RSBC 1996, c. 489;
- Wills Variation Act, RSBC 1996, c. 490;
- Law and Equity Act, RSBC 1996, c. 253, s. 46, 49, 50 & 51; and
- Survivorship and Presumption of Death Act, RSBC 1996, c. 444, s. 2.
There will also be consequential amendments to a number of other statutes.
The Wills, Estates and Succession Act (commonly referred to as “WESA”), will represent a consolidation and modernization of the law surrounding wills and estates, and will also make the laws of British Columbia in this area more consistent with that of the other common law provinces (all provinces except Quebec).
Some of the major changes under WESA are the modernization of the language used in the legislation, changes to the formalities required for the execution of a will, the alteration to the method of distribution of an estate where there is no will, the granting of an increase in the Courts’ discretion to correct a will, and the streamlining of the method of administration of small or insolvent estates.
Although these changes are substantial, certain aspects of estate law have remained static. Notably, the Wills Variation Act will be inserted into Division 6 of WESA nearly word for word, so a disinherited spouse or child will have the same rights to challenge the distribution set out in a will as he or she would have had prior to the implementation of WESA. This will mean that will-makers who do not intend to “make adequate provision for the proper maintenance and support of the will-maker’s spouse or children” will still be leaving their estates vulnerable to potential wills variation claims. There is little chance that WESA will alleviate the already substantial amount of estate litigation relating to wills variation actions.
In addition, as with any new legislation, following WESA’s introduction there will inevitably be disputes as will-makers, the Courts and practitioners seek to interpret and apply the statute. Litigation, negotiation and mediation are expensive to all involved, and the costs may be borne by the estate. Now more than ever, using a lawyer to assist you with your estate plan can add tremendous value in ensuring that your goals are met and, to the highest degree possible, that your estate is not the subject of unnecessary litigation.
