Wills and Succession Act BC: A Comprehensive Guide

How do you know if a Will is valid? Can anything be done to fix an invalid Will? What happens if a loved one dies without a Will? What are the probate rules in BC? Can you challenge a Will if you’ve been disinherited?

Answers to these important legal questions are found in BC’s Wills, Estates and Succession Act.  This article will provide you with an overview of everything you need to know about the powerful and progressive wills and succession act in British Columbia.

What is the wills and succession act that applies in BC?

The Wills, Estates and Succession Act (“WESA”) is the law that applies to the making of a Will, variation of a Will, probate and estate administration, inheritance rules, and many other estate law issues. It received Royal Assent on October 29, 2009 and came into effect as the law in BC on March 31, 2014.

Before WESA came into effect, there were several different statutes in British Columbia that applied to the administration of estates and estate litigation, including the Estate Administration Act, the Probate Recognition Act, the Wills Act, and the Wills Variation Act. Those laws were complex, confusing, sometimes conflicting and difficult to decipher. 

The provincial government decided change was needed. WESA rolled all of those different laws into one piece of legislation, while at the same time modernizing estate law to make it easier to read, understand, and use.

Overview of WESA

The Wills, Estates and Succession Act made major modifications to BC law, including new rules for the formal requirements to execute a Will, changes in the way an estate is distributed if there is no Will, and affirming the laws that apply to a wills variation claim. The new legislation also gave BC judges broader powers, including the discretion to “cure” an otherwise invalid Will. We will discuss those major changes in more detail below.

The new act also clarified some key issues and added new discretion for the Courts. For example:

• Marriage no longer revokes a Will if the marriage took place on or after March 31, 2014. The law before WESA was that marriage automatically revoked an existing Will unless the Will stated otherwise.
• WESA changed it so that anyone over the age of 16 can make a Will in BC (it used to be 19 years or older).
• Section 59 is brand new provision of WESA which allows the Courts the discretion to fix accidental mistakes or omissions. An applicant can ask the Courts the change the terms of a Last Will and Testament on the basis that it needs to be “rectified” to truly reflect the deceased person’s testamentary intentions.

Before diving in any deeper, it’s important to note that WESA doesn’t invalidate a Will that was prepared before WESA came into effect. However, it is a very good idea to talk to an estate planning lawyer to ensure that your Will meets your last wishes and achieves the goals of your estate plan in light of the changes to the law.

Formal requirements to execute a Will

For a Will to be valid, it must meet formal requirements that are now set out in section 37 of WESA. A Will must be: 

• In writing;
• Signed by the will maker; and
• Signed in the presence of two witnesses who are over the age of majority who also sign the Will.

If your BC Will does not meet those formal requirements, it is an invalid Will and of no force and effect unless an applicant is successful in obtaining a Court order pursuant to section 58 of WESA that the Will is cured of its deficiencies.

See here if you’d like more information on how to make a Will, including answers to questions like “Can I write my own will?” and “How do I choose an executor?”

Power to cure an invalid Will

Section 58 of WESA gives the BC Supreme Court a brand-new power to “cure” deficiencies in a document that doesn’t meet the formal requirements of section 37 of WESA discussed above. An application can be brought asking the Court to declare a document to be a valid Will.

To exercise its discretion under section 58 of WESA, the Court must be convinced, on a balance of probabilities, that the document is authentic and that it represents the deceased person’s deliberate, fixed, and final intention regarding the distribution of their property upon death. 

Since it came into force, section 58 of WESA has been used in court cases to cure many types of otherwise invalid Wills, including an unsigned handwritten document and a suicide note. 

Challenging a Will in British Columbia

Estate disputes can arise in scenarios that revolve around the validity of a Will, the actions of an executor, or an unfair disinheritance. Any element of an estate plan can be challenged, including a Will or trust. You may also be able to set aside a gift or transfer of an asset that was made before death. Claims can also be made on assets both inside and outside of a Will.

WESA changed and clarified the laws that apply to those types of estate disputes. For example, WESA has shifted the onus with respect to undue influence. Section 52 of WESA provides that there is a presumption of undue influence in favour of setting aside a Will when the claimant can prove there was a potential that the deceased will-maker was in a relationship of dependence and dominance with the defendant in the case (i.e., the main beneficiary of the Will). The beneficiary seeking to uphold the Will must show that there was no fraud or undue influence. An example of such a relationship would be of caretaker and ward. Prior to WESA, the was no presumption; the claimant had to prove undue influence.

What about wills variation claims? Can a Will be changed after someone dies? What are the rights of beneficiaries of a Will in BC? WESA covers this, too. The rules from the old Wills Variation Act were carried over to WESA. 

The surviving spouse and children of a deceased person have the right to bring a variation claim if they have been unfairly disinherited or want to challenge the distribution in the Will. Section 60 of WESA allows the BC Supreme Court to change the terms of a Will to impose a fair distribution of estate assets, specifically in the case of a spouse or child who has not received proper maintenance or adequate provision in a Will.

Intestacy: When There is No Will

WESA clarified the method of distribution of an estate where a person dies without a Will. What happens if I die without a will? What is the law of succession in BC? Does a spouse automatically inherit everything in BC? All the answers are set out in Part 3 of WESA, which deals with intestate estates.

If a spouse dies without a Will, their surviving spouse inherits the entire estate if there are no other surviving descendants. The surviving spouse would also inherit all, including household furnishings, even if there are other surviving descendants, if the net value of the deceased’s estate is less than the “preferential share” of the spouse. The surviving spouse also has special rights in relation to the spousal home. 

The amount of the preferential share depends on whether the deceased’s children are also the children of the surviving spouse. If so, the preferential share of the spouse is $300,000, plus all household furnishings, and half of the residue of the estate (if any) over $300,000. 

If the children are step children of the surviving spouse, the preferential share is $150,000 plus all household furnishings, and half of the residue of the estate (if any) over $150,000. In either of those circumstances, the other half of the residue of the estate is distributed in equal shares among the deceased’s children.

WESA defines “descendant” as “lineal descendants through all generations.” In most cases, that means the deceased’s children are his or her descendants. The deceased’s grandchildren are also descendants and would be entitled to a share of the deceased’s estate on an intestacy if their parent died before the deceased.

Another important thing to note is that there can be more than one surviving spouse on intestacy.  This is because the definition of “spouse” in WESA includes people who are married to each other and people who have lived with each other in a marriage-like relationship for at least 2 years at the relevant time. That means a deceased person can leave behind both a lawfully married spouse and a common-law spouse. Where the deceased died without a Will, each person who qualifies as a spouse under WESA is entitled to a share of the deceased’s estate.

Vancouver Estates and Trusts Litigation Lawyers

Need help writing a will? Want to discuss your estate plan? Are you considering challenging the Will of a family member? Contact Onyx Law Group today for trusted legal advice and clear, effective strategies. We will work with you to decide on the best options to achieve your individual needs and goals.