Wills, Estates, and Succession Act BC

Estate law in British Columbia can be complex, especially with the Wills, Estates, and Succession Act (WESA) governing how wills are made, interpreted, and challenged. Whether you’re drafting your first will, handling a loved one’s estate, or wondering if you can contest a will, understanding WESA is important. This law streamlines estate administration, clarifies inheritance rules, and even allows courts to “fix” defective wills, ensuring fairness in the distribution of assets.

At Onyx Law Group, we are known for expertise in British Columbia estate law, real-world legal cases, and the latest updates under WESA. Our team of experienced estate lawyers are here to help you make sense of your rights, avoid costly mistakes, and create a plan that truly reflects your wishes. Contact us today for your free consultation.

In this article, we’ll break down the key provisions of WESA, how it impacts estate planning, and what steps you need to take when managing an estate. Whether you’re an executor, beneficiary, or planning your own estate, this guide will provide the clarity and actionable insights you need.

What Is the Wills, Estates, and Succession Act BC?

The Wills, Estates and Succession Act (WESA) is a British Columbia law that governs how estates are administered and inherited. It ultimately gives the Supreme Court of British Columbia the express authority to vary the will of a deceased person if it does not make adequate provision for the proper maintenance and support of the deceased’s spouse or children.

This law also 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 a law in BC on March 31, 2014. As per the new probate rules, the Supreme Court Civil Rules dealing with probate and administration have been amended to reflect changes in the Wills, Estates, and Succession Act.

However, before WESA came into effect, there were several different statutes in British Columbia that applied to the administration of estates and estate litigation. These include 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 a change was needed. So, 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. Additionally, the new Act was modeled in a report prepared by members of the Succession Law Reform Institute of the British Columbia Law Institute.

Key Provisions 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 some of these major changes in more detail below.

A key aspect of this reform was the formal requirements for a valid will, which state that a will must be in writing, signed by the will-maker, and witnessed by two adults. However, the law now allows courts to recognize wills that don’t meet these technical requirements if there’s enough evidence of the deceased’s intentions.

The act also introduced clear intestacy rules, determining how an estate is distributed if someone dies without a will. Instead of leaving loved ones to tackle a patchwork of old laws, WESA lays out a structured approach to dividing assets among spouses, children, and other relatives. One notable shift is that both legally married and common-law spouses can inherit, which wasn’t always the case before. Also, 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.

Another major provision addresses wills variation, allowing spouses and children to challenge a will if they feel they’ve been unfairly disinherited. The court has the power to alter the terms of a will to ensure fair distribution, particularly if a dependent hasn’t been adequately provided for. WESA also strengthens protections against undue influence, shifting the burden of proof in cases where someone, such as a caregiver, has benefited significantly from a will. Now, the person receiving the benefit must prove there was no coercion, making it harder for vulnerable individuals to be taken advantage of.

An important change to note is the reduction of the minimum age at which a person can make a will from 19+ to 16 years.

Furthermore, section 59 is a brand new provision of WESA which allows the Courts the discretion to fix accidental mistakes or omissions. An applicant can ask the Courts to 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 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.

Impact of WESA on Estate Planning

The Wills, Estates and Succession Act (WESA) reshaped estate planning in British Columbia, making it more streamlined, modern, and adaptable. One of the most significant changes was eliminating the rule that marriage automatically revoked a will. Before WESA, if you got married and didn’t update your will, it was considered void, potentially leaving your estate to be distributed according to default laws rather than your wishes. Now, your will remains valid unless you actively change it.

WESA also granted the BC Supreme Court the power to “cure” defective wills. This means that if a will doesn’t meet all the legal requirements, such as missing a witness signature, the court can still recognize it as valid if there is enough evidence that it reflects the deceased’s true intentions. This flexibility helps prevent unnecessary disputes and ensures that minor technical errors don’t override the deceased person’s last wishes.

For anyone with an existing will, WESA serves as a reminder to review and update their estate plan regularly. The laws have changed, and your life circumstances may have as well. If your will was drafted before WESA came into effect, it’s worth revisiting to make sure it still aligns with your goals.

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.

Steps to Take When Dealing with WESA

If you’re handling an estate under WESA, the first step is to draft the will as the testator. For an executor or beneficiary, it’s to confirm the validity. Creating a legally sound will is the foundation of any solid estate plan. While DIY wills may seem like a cost-effective solution, they can lead to unintended consequences such as disputes, misinterpretations, or even invalidation under WESA.

A properly drafted will makes sure your assets are distributed as intended, minimizes legal complications, and provides peace of mind for your loved ones. Seeking professional legal advice helps you avoid common pitfalls, such as unclear wording or missing formalities, and allows you to take full advantage of WESA’s protections and flexibility. Additionally, if the will doesn’t meet formal legal requirements, you may still be able to apply to the court to have it recognized. Also, if no will exists, WESA’s intestacy rules will determine how the estate is distributed.

Next, you’ll need to determine whether probate is required. If the deceased owned real estate or had significant financial assets in their name alone, the executor will likely need to apply for probate, a court process that confirms the validity of a will and grants authority to administer the estate. If probate isn’t required, assets may be distributed directly to beneficiaries according to the will.

Executors have a legal duty to notify all beneficiaries and creditors, settle outstanding debts, and distribute the estate accordingly. WESA provides clear guidelines on handling disputes, including claims for Wills variation or allegations of undue influence.

Next, you need to understand your rights and responsibilities under WESA. It outlines the rights of spouses, children, and other beneficiaries, as well as the legal responsibilities of an executor. Surviving spouses and children, for instance, have the right to challenge a will if they believe they were unfairly disinherited or not adequately provided for.

Executors, on the other hand, must follow strict legal procedures, including applying for probate when necessary, paying off debts, and ensuring assets are distributed correctly. You can’t overemphasize the importance of understanding your rights, it will help prevent a lot of avoidable issues. Whether you’re making a will or dealing with the loss of a loved one, knowing your rights under WESA is important to protecting your interests. At Onyx Law Group, we can help you understand your rights under WESA and protect your interests in the end. So, don’t hesitate to contact us to get the legal guidance you need.

Although administering an estate can be overwhelming, WESA provides a clearer framework than ever before. Still, the process can be complex, so working with a professional can help make sure that everything is handled correctly and efficiently.

How Long Does an Executor Have to Settle an Estate in BC?

There is no strict legal deadline for settling an estate in BC, but executors are expected to act diligently and efficiently. Generally, the process should be completed within one year, often referred to as the “Executor’s Year.” This allows time to gather assets, pay debts, and distribute the estate to beneficiaries.

However, some estates take longer to settle, especially if probate is required or if legal disputes arise. If an executor is slow or unresponsive, beneficiaries have the right to request an update or take legal action to ensure the estate is being handled properly. Executors who delay without justification may even be removed by the court.

Overall, communication is key. Executors should keep beneficiaries informed and provide updates on the estate’s progress. If you’re managing an estate and unsure about the timeline, you need to seek legal guidance to help you avoid unnecessary delays and meet your obligations.

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. Before WESA, there 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 these, 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. This happens 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.

What Assets Are Not Subject to Probate in BC?

Not all assets have to go through probate, which can save time and reduce costs for beneficiaries. Assets that are not subject to probate include jointly owned property, such as a home or bank account held in joint tenancy. When one owner passes away, the asset automatically transfers to the surviving owner without needing court approval.

Assets that have designated beneficiaries like life insurance policies, registered accounts like RRSPs, TFSAs, and RRIFs, and pension benefits can also avoid probate. This means the funds are paid directly to the beneficiary rather than becoming part of the estate. Similarly, assets held in a trust bypass the probate process because they are technically owned by the trust rather than the individual who passed away.

Additionally, assets given away during your lifetime are not subject to probate upon your death. For a gift to be valid, it should be properly documented to eliminate any doubt about your intention to transfer the property. So, if you consider gifting someone assets during your lifetime, you must be aware of the risks and consequences.

Need Help Understanding WESA?

Dealing with estate matters in British Columbia can feel overwhelming, but your understanding of WESA is what puts you in control. Whether you’re drafting a will, managing an estate, or questioning the fairness of an inheritance, knowing the law will guarantee that your rights and those of your loved ones are protected. WESA simplifies estate planning, clarifies inheritance rules, and grants courts the flexibility to uphold true testamentary intentions, even when technical errors arise. The key takeaway is to plan ahead, stay informed, and seek legal guidance when needed.

At Onyx Law Group, our legal team of estate lawyers have years of expertise in British Columbia estate law, real-world legal cases, and the latest updates under WESA. So, schedule a free consultation with us today for trusted legal advice. We will work with you to decide on the best options to achieve your individual needs and goals.