Tag: WESA

There are so many new terms used in both the WESA Act and its Probate Rules ( 25-1) .

Perhaps more importantly, the definitions used in both the Act and the Rules often give rights and powers in and to them selves, such as the rules states who constitutes a party in respect of proceedings under the Rules of Part 25, to the extent that parties may now include persons who previously would not have been proper parties in non -estate proceedings.

RULE 25-1— DEFINITIONS

Definitions

(I) In this Part:

‘affidavit of assets and liabilities for estate grant” means an affidavit referred to in Rule 25-3(2)(g);

“affidavit of assets and liabilities for resealing” means an affidavit referred to in Rule 25-6(2)

“alternate executor” means a person who, under the terms of a will, is to become an executor if the
person named in the will as executor is unable or unwilling to act or continue to act in that
capacity;

“authorization to obtain estate information” means an authorization to obtain estate information
issued under Rule 25-4(1)(a);

“authorization to obtain resealing information” means an authorization to obtain resealing
information issued under Rule 25-7( I )(a);

“citor” means a person who serves a citation under Rule 25-11(1);

“deliver”, in relation to a person, means provide to the person by
(a) personal delivery,
(b) ordinary mail to the person’s residential or postal address, or
(c) e-mail, fax or other electronic means to the address provided by the person for that purpose;

“disputant” means a person who files a notice of dispute under Rule 25-10( I); “estate grant” means

(a) a grant of probate, whether the grant is made for general, special or limited purposes,
(b) a grant of administration, whether the grant is made for general, special or limited purposes, or
(c) an ancillary grant of probate or administration;

“executor” means

(a) a person named in a will as an executor, or
(b) if 2 or more persons are named in a will as an executor, each of those co-executors, unless that person has renounced executorship;

“renounce executorship” has the meaning set out in subrule (4) of this rule;

“solemn form” has the meaning set out in subrule (5) of this rule;

“submission for estate grant” means a submission for estate grant in Form P2;

“submission for resealing” means a submission for resealing in Form P2I;

“testamentary document” means a document that does one or both of the following:

(a) makes or purports to make a testamentary disposition other than
(i) a designation under Part 5 of the Wills, Estates and Succession Act, or (ii) a designation of a beneficiary under Part 3 or 4 of the Insurance Act;
(b) appoints or purports to appoint an executor of the estate of the maker of the
document,and, without limiting this, includes a will;

“wills notice” means a notice filed under section 73 of the Wills, Estates and Succession Act with the chief executive officer under the Vital Statistics Act.

There is now a prescribed form for Renunciation of Executor and a definition of when delivery has been effectively given.

Definitions Under The Act

PART I —DEFINITIONS AND INTERPRETATION

I (I) In this Act: “beneficiary” means

(a) a person named in a will to receive all or part of an estate, or
(b) a person having a beneficial interest in a trust created by a will;
The definition of “beneficiary” is restricted to only those who benefit by a will or a trust in a will. See the definition of “designated beneficiary” for those who benefit under benefit plans. “benefit”, in relation to a benefit plan, means a benefit payable under a benefit plan on the death of a participant;

benefit plan” means

(a) any one or more of the following for the benefit of employees or former employees
of an employer, agents or former agents of an employer, the dependants of any of
them or a designated beneficiary:
(i) a pension plan or retirement plan;
(ii) a welfare fund or profit-sharing fund;
(iii) a trust, scheme, contract or arrangement,
(b) a fund, trust, scheme, contract or arrangement for the payment of an annuity for life or for a fixed or variable term,
(c) a retirement savings plan or retirement income fund registered under the Income Tax Act (Canada),
(d) a fund, trust, scheme, contract or arrangement described in the regulations made under this Act, or
(e) a tax-free savings account within the meaning of the Income Tax Act (Canada),
whether it was created before, on or after this definition comes into force;

chief executive officer” means the chief executive officer under the Vital Statistics Act,
“court” means the Supreme Court;

“declarant” means a person who makes a small estate declaration;*

“descendant” means all lineal descendants through all generations;

(The definition of “descendant” replaces the term “issue”. Section 81 of the Estate Administration Act, R.S.B.C 1996, c. 122 (the “EAA”) defined “issue” as including “all lineal descendants of the ancestor”. Neither term is defined in the Trustee Act, R.S.B.C 1996, c. 464.
“designated beneficiary” means a person to whom or for whose advantage a benefit is payable by a
designation; “designation” means the designation of a designated beneficiary in accordance with section 85)

[designated beneficiaries]; “estate” means the property of a deceased person; “foreign grant” means a grant of probate, including letters of verification issued in Quebec, or a grant of
administration or other document purporting to be of the same nature issued by a court outside
British Columbia; “foreign personal representative” means a personal representative to whom a foreign grant has been
made;

“gift” includes
(a) a beneficial devise or bequest, and
(b) an appointment affecting property other than the appointment of a person as executor of the will;

“instrument” includes a testamentary instrument and other legal documents, but does not include an instrument, other than a will, to which the Insurance Act applies;

“intestate” means a person who dies without a will;

“intestate estate” means the estate of a person who dies without a will;

“intestate successor” means a person who is entitled to receive all or part of an intestate estate;

“land” includes buildings and fixtures, and every right, title, interest, estate or claim to or in land;

“Nisga’a citizen” has the same meaning as in the Nisga’a Final Agreement;
“Nisga’a Final Agreement” has the same meaning as in the Nisga’a Final Agreement Act’,
“Nisga’a Lands” has the same meaning as in the Nisga’a Final Agreement;
“Nisga’a law” has the same meaning as in the Nisga’a Final Agreement;
“Nisga’a Lisims Government” has the same meaning as in the Nisga’a Final Agreement;
“Nisga’a Village Government” has the same meaning as in the Nisga’a Final Agreement;
“nominee” includes
(a) a committee acting under the Patients Property Act granted power over financial affairs,
(b) an attorney acting under an enduring power of attorney as described in section 8 [enduring power of attorney] of the Power of Attorney Act,*
(c) a representative acting under a representation agreement made under
(i) section 7( I )(b) [standard provisions] of the Representation Agreement Act, or (ii) section 9( I )(g) [other provisions] of the Representation Agreement Act; and
(d) a person appointed under section 51 (2) [mentally incompetent Indians] of the Indian
Act (Canada) or the Minister of Indian Affairs and Northern Development;

“personal property” means every kind of property other than land;

“property” means land and personal property;

“registrable charge” means a charge created by an order of the court under section 33(2) [retention of
spousal home] and made effective by registration in a land title office under section 34 [registrable
charges];

“representation grant” means

(a) the grant of probate of a will in British Columbia, whether made for general, special or limited purposes,
(b) the grant of administration of the estate of a deceased person in British Columbia, with or without will annexed, whether made for general, special or limited purposes,
(c) the reseating in British Columbia of a grant of probate of a will or a grant of administration of the estate of a deceased person,
(d) an ancillary grant of probate, or
(e) a small estate declaration filed with a registrar of the court under Division 2 [Small Estate Administration] of Part 6 [Administration of Estates]*

“security interest” means an interest in property that secures payment or performance of an
obligation;

“small estate” means an estate composed wholly of personal property of less than a prescribed value as of thedate of death;
*
“small estate declaration” means a statutory declaration made in the form as set out in the Supreme Court Civil Rules respecting a small estate;

Spousal Home

(a) a parcel of land, owned or owned in common by the deceased person and not leased
to another person, that
(i) is shown as a separate taxable parcel on a taxation roll for the current year
prepared under the Taxation (Rural Area) Act or on an assessment roll used
for the levying of taxes in a municipality, and (ii) has as improvements situated on it a building assessed and taxed in the
current year as an improvement, in which the deceased person and his or
her spouse were ordinarily resident,
(b) a share owned or owned in common by the deceased person in a corporation whose charter, as defined in section I (I) of the Business Corporations Act, provides that a building owned or operated by the corporation must be owned and operated exclusively for the benefit of shareholders in the corporation who are occupants of the building, if the value of the share is equivalent to the capital value of a suite owned by the corporation, in which suite the deceased person and his or her spouse were ordinarily resident and which was not leased to any other person,
(c) a manufactured home, as defined in the Manufactured Home Act, situated on land not owned by the owner of the manufactured home and in which the deceased person and his or her spouse were ordinarily resident, or
(d) a parcel of land on Nisga’a Lands or treaty lands that has as improvements situated on it a building in which the deceased person and his or her spouse were ordinarily resident,
(i) owned or owned in common by the deceased person and not leased to
another person, (ii) held or held in common by the deceased person by way of a right to
possession under Nisga’a law and not leased to another person, or (iii) held or held in common by the deceased person by way of an interest
under the laws of a treaty first nation and not leased to another person;

“spouse” has the meaning given to it in section 2 [when a person is a spouse under this Act]’, “taxing treaty first nation” has the same meaning as in the Treaty First Nation Taxation Act; “testamentary instrument” means a will or designation or a document naming a person to receive a
payment or series of payments on death under a plan or arrangement of a type similar to a benefit
plan;

“will” means
(a) a will,
(b) a testament,
(c) a codicil,
(d) an appointment by will or by writing in the nature of a will in exercise of a power,
(e) anything ordered to be effective as a will under section 58 [court order curing deficiencies], or
(f) any other testamentary disposition except the following:

(i) a designation under Part 5 [Benefit Plans];
(ii) a designation of a beneficiary under Part 3 [Ufe Insurance] or Part 4 [Accident
and Sickness Insurance] of the Insurance Act, (iii) a testamentary disposition governed specifically by another enactment or law of British Columbia or of another jurisdiction in or outside Canada;

“will-maker” means a person who makes a will;

The new term “will-maker” replaces the term “testator”.

“will-maker’s signature” includes a signature made by another person in the manner described in subsection (2).
(2) A reference to the signature of a will-maker includes a signature made by another person in the will-maker’s presence and by the will-maker’s direction, and the signature may be either the will-maker’s name or the name of the person signing.
(3) If there is any conflict or inconsistency between this Act and the Trustee Act with respect to the powers and duties or office of a personal representative, this Act prevails to the extent of the conflict or inconsistency.

Powers of Subpoenas for Testamentary Documents Increased

New Rule 25- 12 of WESA greatly expands the subpoena process in obtaining testamentary documents and grants.

Rule 25-12 (1) allows a person to apply for a subpoena to require a person to deliver to the registry a testamentary document and list of other estate related documents.

The subpoena is a document that can require a person to deliver up a document to the registry, including any one or more of the following:

-An estate grant
-a foreign grant
-resealed grant
-an authorization to obtain receiving information
-an authorization to obtain state information
-a testamentary document

The subpoena is filed of the court registry along with the supporting affidavit in form P35.
The court must be initially satisfied that the documents have been requested and have not been produced and are relevant.

The issued subpoena must be personally served and that person may apply to the court to have the document set aside. The court has a broad discretion in this regard and may make any order that it considers will further the object of the new probate rules.

Perhaps recognizing the reluctance on some estate litigants to provide documents or information, Rule 25-12-(5) allows the registrar to certify noncompliance with the subpoena, and

(6) empowers the court to issue an arrest warrant on proof of service of the subpoena, proof the documents are required, and production of the noncompliant certification.

Rule 25-12 is as Follows:

RULE 25-12—SUBPOENA FOR TESTAMENTARY DOCUMENT OR GRANT

How to obtain a subpoena for testamentary document or grant

(1) A person may apply for a subpoena to be issued to require a person to deliver to the registry
one or more of a testamentary document, an authorization to obtain estate information, an authorization
to obtain resealing information, an estate grant, a foreign grant, a resealed foreign grant and a certified or
notarial copy of such a document.

Filings required

(2) An application may be brought under subrule (I) by filing
(a) a requisition for subpoena in Form P35 that provides for the applicant an address for service that is an accessible address that complies with Rule 4-1(1), and
(b) an affidavit in support of the request.

Subpoena may be issued

(3) On being satisfied that

(a) the document in relation to which the subpoena is sought is required for the purpose of any application or other matter under this Part, and
(b) the person to whom the subpoena is addressed failed to comply with a request of the applicant to provide the document to the applicant,
the registrar may issue the subpoena, in Form P37, sought by the application.

Service of subpoena

(4) A subpoena issued under this rule must be personally served and, if an affidavit is filed for the
purpose of proving the service, the affidavit must state when, where, how and by whom service was
effected.

Certification of non-compliance

(5) The registrar may endorse a copy of the requisition for subpoena in Form P35 with a notation
that the person to whom the subpoena was directed has not, within a specified period done either of the
following:

(a) delivered to the registry the document referred to in the subpoena;
(b) provided to the registrar an affidavit indicating that the document referred to in the subpoena is not in the person’s possession or control and setting out what knowledge the person has respecting that document.

Failure of subpoenaed person to file document

(6) On receipt of
(a) proof that a subpoena was served on a person (the “served person”),
(b) proof that the delivery of the documents required by the subpoena is required for the purpose of any application or other matter under this Part, and
(c) a copy of the requisition for subpoena in Form P35 that has been endorsed by the registrar in accordance with subrule (5),which the court, by its warrant in Form P36 directed to a peace officer, may cause the served person to be apprehended and promptly brought before the court and to be detained in custody or released on terms the court may order, and the court may order the served person to pay the costs arising from his or her failure to file the document.

Release of apprehended person

(7) The court may, by release order in Form 117, order the release of a person apprehended under
subrule (6) on receiving an undertaking in Form 116 from that person.

Order setting aside subpoena

(8) A person who has been served with a subpoena under this rule may apply to the court for an
order setting aside the subpoena on the grounds that compliance with it is unnecessary or that it would
work a hardship on the person, and the court may make any order it considers will further the object of
these Supreme Court Civil Rules.

Up to the introduction of WESA on March 31 next, a disputant of an estate could file a caveat which was good for six months, and which could be renewed as many times as necessary for a further six months at a time.

Rule 25-10 makes many significant changes to that of dispute replace caveats, first and foremost by changing their name to Notices of Dispute.

The Notice of Dispute will still prevent the issue of an estate grant, unauthorized nation to obtain state information, and authorization to obtain receiving information, and the receiving of a foreign grant under Rule 10 (8).

It can however only be filed once S 10 (2)
the new Form 29 requires more information on the grounds that the notice is filed than previously necessary under a caveat.

It may be amended once with leave of the Court 10(4)

10(6) Allows for a Court to renew a Notice of Dispute for any time it considers appropriate on certain criteria, no prejudice being one of them

Under S 10(10) the Court may remove a Notice of Dispute on the grounds of S 10(11), that the filing is not in the best interests of the estate.

Rule 10 (12) States that the N0tice to Dispute ceases in one year from the date of filing, subject to it having been renewed.

NOTICES OF DISPUTE

Notice of dispute

(1) To oppose the issuance of an estate grant, an authorization to obtain estate information or an
authorization to obtain resealing information or to oppose the resealing of a foreign grant, a person to
whom documents have been or are to be delivered under Rule 25-2(2) must file a notice of dispute that
accords with subrule (3) of this rule before the earlier of
(a) the issuance of an authorization to obtain estate information or an authorization to obtain resealing information, and
(b) the issuance of an estate grant or the resealing of a foreign grant
Only one notice of dispute to be filed
(2) A person must not file more than one notice of dispute in relation to any one estate.

Contents of notice of dispute

(3) A notice of dispute referred to in subrule (I) must be in Form P29, must provide an address for
service of the disputant, which address for service must be an accessible address that complies with

Rule 4-1(1), and must disclose
(a) that the disputant is a person to whom documents have been or are to be delivered under Rule 25-2(2), and
(b) the grounds on which the notice of dispute is filed.
Amendment of notice of dispute
(4) A notice of dispute may be amended once without leave of the court, and after that only with leave of the court-Amendment of notice of dispute

(5) Rule 6-1 (2) and (3) apply to an amendment of a notice of dispute without leave of the court and, for that purpose, a reference in that rule to a pleading is deemed to be a reference to the notice of dispute.
Renewal of notice of dispute

(6) The court may renew a notice of dispute, for any period the court considers appropriate, as
follows:
(a) if the application for renewal is brought before the notice of dispute ceases to be in effect, if the court is satisfied that it is appropriate to make an order for renewal;
(b) if the application for renewal is brought after the notice of dispute ceases to be in effect, if the court is satisfied that
(i) there were good reasons that the application for renewal could not be brought before the notice of dispute ceases to be in effect,
(ii) substantial prejudice would be suffered by the person seeking renewal of the notice of dispute if the order for renewal is not made, and
(iii) no other person interested in the estate would suffer substantial prejudice if the order for renewal is made.

Application for renewal of notice of dispute

(7) Subject to Rule 8-5(6), an application to renew a notice of dispute filed in relation to an estate
must be made on notice to
(a) each person who has submitted for filing a submission for estate grant, or a submission for reseating, in relation to the estate,
(b) each person who has filed a notice of dispute in relation to the estate, and
(c) any other interested person to whom the court directs notice be given.
No grant while notice of dispute in effect

(8) While a notice of dispute is in effect in relation to the estate of a deceased, the registrar must
not, with respect to that estate,

(a) issue an estate grant, an authorization to obtain estate information or an authorization to obtain reseating information, or
(b) reseal a foreign grant

Withdrawal of notice of dispute

(9) A disputant may withdraw a notice of dispute by filing a withdrawal of notice of dispute in
Form P30.

Application to remove notice of dispute

(10) A person who is interested in an estate in relation to which a notice of dispute has been filed,
including, without limitation, an applicant for an estate grant or for the resealing of a foreign grant, may
apply on notice to the disputant for an order removing the notice of dispute.

Grounds on which notice of dispute may be removed

(11) On an application under subrule (10), the court may, by order in Form P31, remove a notice of
dispute if the court determines that the filing is not in the best interests of the estate.
When notice of dispute ceases to be in effect

(12) A notice of dispute in relation to an estate ceases to be in effect as follows:

(a) subject to paragraph (b), on the date that is one year after the date on which the notice of dispute was filed;
(b) if the notice of dispute has been renewed under subsection (6), at the end of the renewal period;
(c) if the notice of dispute is withdrawn by the disputant under subrule (9);
(d) if the will in relation to which the notice of dispute relates is proved in solemn form;
(e) if the court orders, under subrule (11) or otherwise, that the notice of dispute is removed.

Following upon section 58 of WESA, section 59 radically expands the courts powers to rectify a will and allow it to carry out the will maker’s intentions.

It does not matter if the court is sitting as a court of construction or as a court of probate, as its previous power confining into deleting words from the will that the probate stage.

The primary purpose of section 59 is to have the court rectify the will if the court determines that the will fails to carry out the will maker’s intentions because of such things as a clerical error, a misunderstanding on the part of the lawyer who prepared the will or the will maker.

Rectification of will

59 (I) On application for rectification of a will, the court, sitting as a court of construction or as a court of probate, may order that the will be rectified if the court determines that the will fails to carry out the will-maker’s intentions because of
(a) an error arising from an accidental slip or omission,
(b) a misunderstanding of the will-maker’s instructions, or
(c) a failure to carry out the will-maker’s instructions.

(2) Extrinsic evidence, including evidence of the will-maker’s intent, is admissible to prove the existence of a circumstance described in subsection (I).

(3) An application for rectification of a will must be made no later than 180 days from the date the representation grant is issued unless the court grants leave to make an application after that date.

(4) If the court grants leave to make an application for rectification of a will after 180 days from the date the representation grant is issued, a personal representative who distributes any part of the estate to which entitlement is subsequently affected by rectification is not liable if, in reasonable reliance on the will, the distribution is made

(a) after 180 days from the date the representation grant is issued, and
(b) before the notice of the application for rectification is delivered to the personal representative.
(5) Subsection (4) does not affect the right of any person to recover from a beneficiary any part of
the estate distributed in the circumstances described in that subsection.

Also of great significance is the addition of subsection to allowing for the introduction of extrinsic evidence, including evidence of the will maker’s intent, to prove the existence of a circumstance described in section 1.

There is a 180 day limitation for rectification of a will from the date the representation grant is issued unless the court grants leave to make an application after that date

Definition of Will Expanded

Under WESA the definition of will is expanded to include the will itself, a testament, a codicil, an appointment by will or writing in the nature of a will in exercise of a power, and under s 58, anything ordered by the Court to cure a deficiency in the will, or any other testamentary disposition.

The definition is:

“will” means
(a) a will,
(b) a testament,
(c) a codicil,
(d) an appointment by will or by writing in the nature of a will in exercise of a power,
(e) anything ordered to be effective as a will under section 58 [court order curing deficiencies], or
(f) any other testamentary disposition except the following: (i) a designation under Part 5 [Benefit Plans];
(ii) a designation of a beneficiary under Part 3 [Life Insurance] or Part 4 [Accident
and Sickness Insurance] of the Insurance Act;
(iii) a testamentary disposition governed specifically by another enactment or
law of British Columbia or of another jurisdiction in or outside Canada;

While it will be the subject of a further blog, it is really s 58 that is one of these most significant changes under the entire legislation.

Section 58 of WESA is essentially a dispensing power of the court to relieve against any formal defects to comply with the formal requirements of the will.

The power essentially allows the court to remedy a defect in the formalities of execution of the will that would otherwise result in the defeat of the deceased’s “true testamentary intentions”.

It is a broad power that allows the court to consider and determine whether any record document or writing or marking on the will should be given testamentary effect.

Granting relief, the test to be applied by the court is not one of substantial compliance with testamentary formalities, but instead is whether the record in question reflects” the testamentary intentions of the deceased person “( S 58 (2) (a)

A descendant under WESA is defined in S 1 (1) as all of lineal descendants through all generations.

It in effect replaces the word “issue” that in S 85 of the Estate Administration Act had been defined as ” all lineal descendants of the ancestor”.

This may cause some confusion in the future due to the common use of the words in wills stating ” to my issue in equal shares per stirpes”, but I am sure that the courts can easily resolve with that.

Sections 23 and 24 deal with the distribution of intestate estates to descendants of a deceased.

No spouse but intestate leaving descendants or relatives

23 (I) This section applies if a person dies without a will and without leaving a surviving spouse.
(2) Subject to subsection (3) and section 24, if a person dies without leaving a surviving spouse, the
intestate estate must be distributed
(a) to the intestate’s descendants,
(b) if there is no surviving descendant, to the intestate’s parents in equal shares or to the intestate’s surviving parent,
(c) if there is no surviving descendant or parent, to the descendants of the intestate’s parents or parent,
(d) if there is no surviving descendant, parent or descendant of a parent, but the intestate is survived by one or more grandparents or descendants of grandparents, (i) an equal part to the surviving parents of each of the intestate’s parents, in
equal shares of the part, but if a parent of the intestate has no surviving parent, that part to the descendants of that grandparent in equal shares, and (ii) for the purpose of subparagraph (i), a part is determined by dividing the estate by the number of parents of the intestate who have
(A) a surviving parent, or
(B) a surviving descendent of the parent referred to in clause (A),
(e) if there is no surviving descendant, parent, descendant of a parent, grandparent or
descendant of a grandparent, but the intestate is survived by one or more great-
grandparents or descendants of great-grandparents,
(i) an equal part to the surviving grandparents of each of the intestate’s
parents, in equal shares of the part, but if a grandparent of the intestate has no surviving parent, that part to the descendants of that great-grandparent in equal shares, and
(ii) for the purpose of subparagraph (i), a part is determined by dividing the estate by the number of parents of the intestate who have
(A) a surviving grandparent, or
(B) a surviving descendent of the grandparent referred to in clause (A), or
(f) if there is no person who is entitled under paragraphs (a) to (e), the whole intestate
estate passes to the government and is subject to the Escheat Act.
(3) For the purposes of this section, persons of the 5th or greater degree of relationship to the
intestate are conclusively deemed to have predeceased the intestate, and any part of the intestate estate
to which those persons would otherwise be entitled must be distributed to other descendants entitled to
the estate.

Section 23 is a new provisions with a new approach called ” parentelic” that replaces the degrees of kinship that had been in S 85-89 of the Estate Administration act.

S 23 only applies where a decasew dies without a spouse, descendants, parents or descendants of parents surviving the deceased.

Under the parentelic system:

a) descendants of the nearest common ancestor always inherits before the descendants of a more distant ancestor;

b) distributions are more likely to be made on both sides of the family

c) the need to locate more distant relatives is lessened as only persons of the 4th degree or less in relationship to the intestate may inherit ( ie first cousins of the deceased would inherit, but not the children of first cousins as that would be more than the 4th degree. IF no one of 4th or lesser degree, then the assets escheat to the Crown.

Distribution to descendants

24 (I) When a distribution is to be made under this Part to the descendants of a person, the property that is to be so distributed must be divided into a number of equal shares equivalent to the number of
(a) surviving descendants, and
(b) deceased descendants who have left descendants surviving the person, in the generation nearest to the person that contains one or more surviving members.
(2) Subject to subsection (3), each surviving member of the generation nearest to the person that contains one or more surviving members must receive one share, and the share that would have been distributed to each deceased member if surviving must be divided among that member’s descendants in the same manner as under subsection (I) and this subsection.

(3) Distribution to descendants under subsections (I) and (2) as a result of a parent of the descendants having predeceased the intestate ends with the children of a brother or sister of the intestate.

Section 24 brings forward the policy of s. 84 of the Estate Administration Act to provide for per stirpes (or “by representation”) distribution to descendants, and expressly specifies the steps to determine per stirpal distribution.

The court does not have jurisdiction to vary the equal distribution, even though one of the children has engaged in offensive conduct: Andersson v. Khan Estate, 2006 BCSC 521, affirmed 2007 BCCA 532 (considering s. 84 of the EAA).