The Wills, Estates and Succession Act is the legislation in British Columbia that determines the validity of wills and estates. This act was brought into force on March 31st, 2014. If your current Will was drafted prior to this date, and in accordance with the old legislation, it may be time to revise your Will to ensure its compliance with the new Act.
When a person dies, that person’s assets fall into one of two general categories: 1) assets that were the deceased’s property and form part of the deceased’s estate, and 2) assets that may or may not have been the deceased’s property but which do not form part of the deceased’s estate. Examples of property that will not form part of the estate are insurance plans and RRSPs with a designated beneficiary. Only property that forms part of the deceased’s estate will be distributed under the terms of the will or under the Wills, Estates and Succession Act. Such assets might include the client’s personal belongings, money in the form of accounts, investments, etc., and real estate.
When an individual dies without a Will, this is referred to as dying intestate. The deceased’s assets will be distributed by the court in accordance with the rules in the Wills, Estates and Succession Act. There is a defined order in the Act that will determine who shares in what percentage of your assets, based on which descendants you have at the time of death. If you have no successors as determined by the Act, your estate will revert to the provincial Crown. In this situation, neither the deceased, their family, nor anyone else has a say in how the assets are distributed. In order to realize your wishes after death, it is important to consider estate planning techniques and to prepare your Will.
If the deceased has left a Will, the court will determine whether the formal requirements of the Will have been met, as illustrated in the Wills, Estates and Succession Act. This includes things such as the signature of the deceased and the witnesses. Upon meeting these requirements, the court will deem the Will to be valid unless someone challenges the Will on one of the permitted grounds. If you are questioning the validity of a Will in British Columbia, you can formally challenge the Will in court under the Wills, Estates and Succession Act.
- In order for a will to be effective the will-maker must have:
- mental capability to make a Will;
- intended for the Will to dispose of their assets;
- intended that the Will not take effect until after death and to be entirely dependent on death for its operation;
- intended for the Will to be (and it in fact must be) revocable; and
- executed the Will in accordance with the requirements of the Wills, Estates and Succession Act.
Sections 36-40 of the Wills, Estates and Succession Act set out the formal requirements for a valid Will:
- the Will must be in writing and be signed by the will-maker;
- the will-maker’s signature must be witnessed by 2 or more individuals who are both present at the time of signing by the will-maker and who also sign the Will,
- the will-maker must be 16 years of age or older and the witnesses must be 19 years of age or older.
If the estate in question belonged to an Aboriginal person, sections 42-50 of the Indian Act, R.S.C. 1985, c. I-5 may apply. Division 3 of the Wills, Estates and Succession Act also deals with certain First Nations and Nisga’a property.
It is important to note that section 61 of Wills, Estate and Succession Act prohibits any applications to vary a will 180 days after the Will has gone through probate. This time limit begins after probate is issued in a British Columbia estate. The Executor requires notice of the variation within 30 days of the expiry of this 180-day period. If the time limit expires, you will be unable to bring your claim. Other challenges to wills may have a longer limitation period, but it is important to commence your claim promptly to protect your rights.
One common example of estate litigation is a claim by a child or spouse who was excluded from the deceased’s Will. A will-maker has a moral obligation to provide for their spouse and all of their children in their Will, in a manner that is “adequate, just and equitable”. If proper provision is not made, it is possible to apply for a Court order varying the Will in that individual’s favour. However, the applications are not always successful. A will-maker may have a good reason to treat their children differently in the Will, for example if the child is estranged from the will-maker. The Court may find the will-maker was justified in their decision to exclude certain children and that the Will should be upheld. Before deciding to vary a will, the Court will consider a number of factors including the size of the estate, what assets if any were transferred by the will-maker when he or she was still alive, and the relative financial positions of the children.
Common Estate Litigation Terms:
- Executor: the person appointed to carry out the wishes in a Will.
- Trustee: the person responsible for managing property held in trust.
- Estate: all the money and property owned by an individual at the time of their death.
- Testator: the person who makes the Will (formal term for will-maker).
- Beneficiary: a person who benefits from the Will.
- Intestate: when someone dies without a Will.
- Probate: the process by which the court confirms the Will to be valid and appoints the Executor(s).
- Grant of Probate: the legal document authorizing an executor(s) to manage the deceased’s estate in accordance with the provisions of their will.