Sweeping new estates legislation for British Columbia

Among the new law’s highlights:
1. The process of inheritance when a person dies without leaving a will is clarified;
2. The sequence of heirs to a person’s estate is clearly outlined;
3. Courts have greater latitude to ensure a deceased person’s last wishes will be respected;
4. The onus is now on the person receiving a bequest to prove there was no undue influence used in drawing up a will before the testator’s death;
5. The minimum age for making a will is lowered from 19 to 16 years of age;
6. New probate rules are now in effect.

The provincial government worked closely with a variety of stakeholders, including the B.C. Law Institute (BCLI) in a reform process that began in 2003 and had support from the Ministry of Justice.

In fact, more than 35 wills and estates experts volunteered their expertise in 135 committee meetings during the reform work. “Overall, these reforms are long overdue,” said Jim Baird, who heads Vancouver-based Boughton Law Corporation’s estates group. “There was a great deal of in-depth analysis of the old laws and these reforms by and large fix the problems.”

For example, Baird says the new law maintains previous acknowledgement of some categories of unmarried couples and continues to give them an “equivalent to married status.” It also further refines the definition of “spouse.”

“The WESA brings the effect of estate law on the treatment of a ‘common law’ relationship more in line with recent reform of [B.C.] family law, so there’s now consistency in its treatment under both laws,” Baird adds.

The WESA also reforms what happens when a person dies without a will. “Under [the previous] law, when a person died without a will, their spouse was given a lifetime interest in the matrimonial home,” Baird says. “The lifetime interest is abolished under WESA but the surviving spouse now has the option to purchase the family home on certain conditions and the court can, in the case of certain hardships, prescribe certain alternative arrangements.”

Next: Changes may lead to more litigation
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Changes may lead to more litigation

In one of the most important changes, Section 52, which deals with undue influence in will-making, reverses the onus to prove undue influence from the person making the accusation to the person being accused. This section is expected to assist elderly will makers who often are more dependent on others assisting them in making financial decisions and planning their estates. “This is a significant change if you’re going to court over a will,” Baird says. “The onus is now on the person receiving the gift to prove it was truly meant as a gift and that there was no undue influence.

“Often, there’s one family member or a family friend advising an elderly parent so if that person winds up with the bulk of the estate under the will, the question often arises whether or not there was undue influence used when the will was made,” Baird says. “I’ve seen enough of these situations over the years to conclude that this reform is a good thing.”

As this provision may lead to a rise in litigation, financial advisers involved with a client’s estate planning must be fully aware of the new law on undue influence in will-making.

Like any new legislation, the WESA will have to be tested in the courts. But one particular part — Section 58 — is likely to be contested much more than other sections. Under the new law, wills must still meet formal requirements for signatures and witnessing. “But Section 58 is entirely new and allows courts, on application, to relax these formalities,” Baird explains. “It could permit almost any document or record, including electronic records, to be considered and given effect as a person’s last will — even if it had not been signed by the will maker.”

Some lawyers fear this could open a floodgate of costly lawsuits by disgruntled beneficiaries who could argue that all manner of letters, emails, scrapes of paper, etc. are in fact a person’s last will. “This is definitely a section the courts are going to have to deal with,” Baird says.

The new probate rules will also help shorten and simplify the process of settling an estate by establishing province-wide probate court procedures. They also create new simplified, standardized forms for the public to use in this process. Simple and complex cases will each have their own probate application forms, for example.

“Wills made prior to the WESA are preserved and remain valid under the new laws,” Baird advises. “However, everyone is encouraged to read over their existing will from time-to-time to make sure it reflects current conditions.”

For more information on the WESA, the Continuing Legal Education Society of B.C. has a dedicated learning website at: http://wesa.cle.bc.ca.