If you are not married
The Wills, Estates and Succession Act (WESA) treats two people as spouses if they were married, or if they lived together in a marriage-like relationship for at least two years. The two-year line matters in several ways.
- Without a will. If someone dies without a will and leaves a spouse, the spouse inherits all of the estate where there are no descendants, and a large share where there are. A partner who does not meet the two-year test is not a spouse and inherits nothing on an intestacy. The estate goes instead to the deceased’s children, or if there are none, to their parents, then siblings and more distant relatives.
- Who administers. On an intestacy the spouse, or someone the spouse nominates, has first priority to be appointed administrator. A partner who is not a spouse has no such priority.
- Challenging a will. A spouse, including a partner of two years or more, can ask the court to change a will that leaves them without adequate provision, within 180 days from the date the grant is issued.
- Ending the relationship. Spouses in a marriage-like relationship stop being spouses for WESA purposes when one or both of them end the relationship. From then on, a will’s gift to the former partner and their role as executor fall away, unless the will itself provides differently.
Whether a relationship was “marriage-like”, and when it began or ended, are questions of fact that the court decides on evidence; there is no registration. A couple who wants the survivor to inherit should not rely on meeting a test after the fact. A will that names the partner, written while the relationship is going well, is simpler. Our article on a partner who died without a will looks at what happens when there is none, and how to become an administrator of an estate without a will covers the court application. A partner who contributed to property but is not a spouse may have other claims, such as unjust enrichment; see also our article on whether the remedy is money or property.
Money that passes outside the will
Some of what you own may not be governed by your will at all. Under WESA, a benefit paid to a designated beneficiary under a benefit plan (an RRSP, RRIF, TFSA or a pension, for example) does not form part of the estate and is not subject to the deceased’s creditors. A designation must be in writing and signed, and it can be changed unless it was made irrevocable. Life insurance designations follow their own rules under the insurance contract.
Two practical points follow. First, check who is named on each plan, especially after a new relationship or a separation: a separation revokes gifts to a former spouse in a will, but it does not automatically change a beneficiary designation. Second, naming a child under 19 directly raises the question of who will manage the money until the child is an adult; a trust for the child, with a trustee you choose, can be considered instead. These are questions to raise when the will is drafted.
Guardians for young children
A parent who is a child’s guardian can appoint someone to become the child’s guardian on the parent’s death, either in a will or in a separate form signed in front of two witnesses who are not the person being appointed. If the other parent survives and is also a guardian, that parent keeps full parental responsibilities unless an order provides otherwise. The appointment takes effect only if the person appointed accepts it, expressly or by their conduct. See our wills page, and the article What Kind of Lawyer Does Wills?, for what a young family’s will usually contains.
Choosing an executor when you live alone
If you live alone, or your family is overseas, choosing an executor takes some thought. A named executor can renounce, and administration then passes as if they had never been appointed, so it is sensible to name an alternate. If your only named executor is under 19, the court grants administration to the child’s guardian or another person until the executor turns 19. A trust company or a trusted friend can act; what matters is that the person can deal with banks, a landlord or a strata, and a court application if one is needed. Keep in mind how a power of attorney differs from an executor: the attorney acts only while you are alive, the executor only afterwards.
For decisions during life, an enduring power of attorney covers money and legal affairs, and a representation agreement covers health and personal care. How they fit together is set out in our article What Is a Living Will in BC.
A will made somewhere else
People who have moved to Vancouver from another province or country may already have a will. WESA accepts a will as formally valid, and admissible to probate, if it was made in accordance with any of several laws, including the law of the place where it was made, the law of the will-maker’s domicile, ordinary residence or citizenship at the date of the will or of death, or BC law. A foreign will can therefore remain valid here, but it may not deal well with BC property, beneficiary designations or a partner the will-maker met later. Having it reviewed, and deciding whether a separate BC will is needed, avoids an executor having to prove foreign law. Where property or an executor is outside Canada, tax and foreign-law advice may also be needed.
When the person who died was renting
When the deceased rented their home, the tenancy does not simply disappear. The Residential Tenancy Act treats the estate of a deceased tenant as the tenant, so the executor or administrator deals with the landlord about ending the tenancy, the deposit and clearing the unit. Do not hand back keys or sign anything that waives a claim until you know who has authority to act for the estate; a landlord may want to see the will or the grant. Our probate and estate administration team, led by Veronica Manski, advises executors on these early steps and makes the court application for a grant when one is required.
If you are an executor and are unsure whether a later will exists, the Vital Statistics wills registry can be searched, and the search certificate is part of every probate application. The Service BC office in Vancouver does not process wills searches, so order the search by mail or from a Service BC counter outside Vancouver, Burnaby and Surrey.
If something goes wrong
Estate disputes go to the Supreme Court, whose Vancouver registry sits at 800 Smithe Street, about 2.8 km by road from Kits Beach. The common claims are a spouse’s or child’s claim to vary a will, a challenge to a will’s validity, and disputes between a surviving partner and the deceased’s family about property held in joint names or paid for by both. Candace Cho, KC leads the estate litigation team that takes on these files, and a first half hour on a dispute costs nothing. Our articles on a father who had good reason to disinherit two sons, on resulting trusts for creditors but not family members and on whether a trustee can go to jail for stealing from a trust show the range of issues.
Who you will work with
- Planning: Sandy Minh Abley heads our estate planning work. Called to the bar in 2005, she is a designated member of STEP (the Society of Trust and Estate Practitioners) and also holds the Certified Financial Planning designation.
- Wills, powers of attorney and probate: Veronica Manski, called in 2015.
- Disputes: Candace Cho, KC, principal, who joined forces with Judith A. Janzen in 2012, with litigators Jackson Todd, Valerie LeBlanc, Kevin Campbell, Julia Pinnock, Jesse Patrao, TJ Garcha, Louisa Ledesma and Katya Richardson.
Profiles for everyone are on the team page.
For a separation, see our Kitsilano family lawyers.
Common questions
My partner and I have lived together for 18 months. If I die without a will, does my partner inherit?
No. Under WESA your partner becomes a spouse only after two years in a marriage-like relationship. Until then, your estate goes to your children or other relatives. A will is the way to provide for your partner now.
Does my will cover my RRSP and TFSA?
Not if you have named a beneficiary on the plan. A designated benefit is paid directly to that person and is not part of your estate. If no one is named, or the named person has died, the plan’s terms decide where it goes, which may be your estate.
Who looks after my children if I die?
If the other parent is alive and a guardian, they keep parental responsibilities. If not, or as a backup, you can appoint a guardian in your will or in a witnessed form, and that person must accept the appointment.
My mother rented an apartment in Kits. What happens to her lease?
Her estate stands in her place as the tenant. The executor or administrator deals with the landlord to end the tenancy, recover the deposit and clear the unit.
Do you charge for the first meeting?
The first half hour on an estate dispute is free of charge. Wills and planning consultations are explained when you phone (604) 900-2538.
