WESA #13: Definition of Spouse To Be Changed

WESA #13 – Definition of Spouse To Be Changed to Eliminate Two Year Limitation For Wills Variation Actions

Please ignore my recent blog on the effect of WESA and the Wills Variation act. It was no sooner written than the law is about to be  changed.

51 Section 2 (2) is repealed and the following substituted:

(2) Two persons cease being spouses of each other for the purposes of this Act if,

(a) in the case of a marriage, an event occurs that causes an interest in family property, as defined in Part 5 [Property Division] of the Family Law Act, to arise, or

(b) in the case of a marriage-like relationship, one or both persons terminate the relationship.

(2.1) For the purposes of this Act, spouses are not considered to have separated if, within one year after separation,

(a) they begin to live together again and the primary purpose for doing so is to reconcile, and

(b) they continue to live together for one or more periods, totalling at least 90 days.

WESA #12 – Bequests to Former Spouses Lapse

Deemed Lapse of Gift to Result from Triggering Event under the Family Law Act

Section 16 of the current Wills Act provides that gifts to a spouse are revoked only upon an order for judicial separation, judgment for divorce, or a court decree of nullity.

Under the WESA, this provision has been extended and harmonized with the Family Law Act. By defini­tion, a person now ceases to be a spouse if an event occurs that causes an interest in family property to arise within the meaning of the Family Law Act (WESA, s. 2(2)).

A person also ceases to be a spouse after two years separation for the purposes of the WESA legislation.

Accordingly, a gift in a will to a person who has subsequently ceased to be a spouse, or an appointment of that person as an executor, is revoked and any gift will be treated as though the spouse had prede­ceased the will-maker (WESA, s. 56(2)).

This is however subject to a contrary intention appearing in a will. It should be noted however the revocation continues notwithstanding a subsequent reconciliation of the will-maker and the spouse (s. 56(3)).

WESA #11- Definition of Will Expanded Due to Power of Court to Cure Defects

Definition of Will :

(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;

[am. 2011 -6-1. 2. 3, 4, 5. effective June 2, 2011.]

This new definition of will is expanded beyond the Wills Act definition of “a testament, a codicil, an appointment by will or by writing in the nature of a will in exercise of a power and any other testamentary disposition” to include defectively executed documents admitted to probate under the curative dispensing power in s. 58.

 

Secondly,it  expressly excludes instruments that depend on death for their operation which are governed by other parts of the WESA or other enactments, such as beneficiaries of insurance.

 A “will-maker” means a person who makes a will, replacing the words testator and testatrix.

A ”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

WESA – The Effect of Adoption (Section 3)

adoption

The Effect of Adoption (Section 3)

A  “pre adoption parent” is defined as the person who, before the adoption of a child, was the child’s parent.

Section 2 provides    that subject to  section 3, if a child is adopted, then:

a)      The child is not entitled to the estate of his or her pre-adoption parent except through the will of the pre adoption parent, and;

b)      A pre adoption parent of the child is not entitled to the esate of the child except through the will of the child.

Section 3, sourced from S 37 of the Adoption Act, states” Adoption of a child by the spouse of a pre ad option parent does not terminate the relationship of parent and child between the  child and the pre adoption parent for the purposes of succession under this act”

Simply stated on an intestacy an adopted child may not inherit from  his or her birth parent and vice versa. I believe it would also stand to reason that the said adopted child would alos not have a right to bring a claim under the Wills Variation Act

WESA and the Wills Variation Act

WESA and WVA

WESA and the WILLS VARIATION ACT

In its initial report in 2006, the British Columbia law Institute recommended changes to the British Columbia Wills Variation Act on the basis that British Columbia law should conform with the rest of Canada.

The report proposed that the rights of adult children to make a claim under the Wills Variation Act   (WVA) only when the said adult was a student or could not be self-supporting by reason of illness, mental or physical disability, or other special circumstances.

The report in essence removed the moral obligation of a parent to provide for an adult self-supporting child.

In the writer’s opinion this was the most significant and controversial recommendation in the report, and after much debate, this recommendation was eventually withdrawn.

Fundamentally there have been no substantive changes to the WVA itself that would in any way limit the right of an adult independent child to make a claim under the WVA on the basis that the deceased breached his or her moral obligation to provide for the adult child.

There were however several changes that must be noted, the most significant perhaps being the change in the definition of “spouse “in itself.

WESA  will apply to all deaths after March 31, 2014, regardless of when the deceased’s will was executed.

The significance of the change in the definition of “spouse” is not only does it create a spousal relationship by living in a marriage like relationship for at least two years immediately before the death of one of the spouses, but it also stipulates when a spouse ceases to be a spouse, namely:

  1. The married spouses have been separated for at least two years;
  2. an event has occurred that causes an interest in the family property under the Family Law Act (which came into effect on March 18, 2013)

Accordingly married spouses will lose their right to claim under the WVA after the expiration of two years separation.

A common-law marriage must still be in the marriage like relation at the will maker’s death in order to qualify as a claimant.

 

The Variation of Wills is found in Division six of WESA,  sections  60-72.

 

Section 61 has two changes in the time limitations:

  1. the proceeding must be commenced within 180 days from the date of the representation grant ( instead of the former six months);
  2. the executor of the will must be served with the court process  no later than 30 days after the expiry of the 180 day, unless the court extends the time for service;
    1. 61(4)  has added the word “conclusively” which seems to confirm that the commencement of the action by one claimant eliminates the limitation period to commence claims for other claimants
  3. 61 (5)-there is no longer an absolute requirement that a certificate of pending litigation be filed on estate property

Section 64 has made a significant change to former section 7 of the WVA, to now allow the court to transfer a property or to establish a trust .

Section 66 is a new provision that expressly allows the court to order the suspension of the administration of the deceased estate in whole or in part,, and part B allow six sending any part of the will maker’s estate from the effect of an order under section 60 that provides for maintenance from the estate.

Section 69 now provides that the time period before a transfer of property to a beneficiary can be registered in the land title office without the consent of the other beneficiaries, or a court order, has been changed from six months to 210 days.

Fundamentally, in terms of the statutes that are being changed and incorporated into WESA, the least affected of them all are the provisions of the Wills Variation Act.

WESA #7 – What is WESA and the New Definition of Spouse

WESA #7 – What Is WESA and the New Definition of Spouse

In one month’s time, significant changes will be introduced to the laws of Wills, Succession and Estates with several acts being repealed and rolled into one New Act called Wills, Estates , Succession Act (WESA)

When it comes into force, the WESA will repeal the Estate Administration Act, R.S.B.C. 1996, c. 122; the Probate Recognition Act, R.S.B.C. 1996, c. 376; the Wills Act, R.S.B.C. 1996, c. 489; and the Wills Variation Act, R.S.B.C. 1996, c. 490.

These four statutes are now consolidated in the WESA, with several substantial changes, some of which are described in this overview. The WESA repeals ss. 46, 49, 50, and 51 of the Law and Equity Act, R.S.B.C. 1996, c. 253, and deals with benefit plans in Part 5.

The WESA also repeals s. 2 of the Survivorship and Presumption of Death Act, R.S.B.C. 1996, c. 444 (and renames it the Presumption of Death Act) and sets out sur­vivorship rules in Part 2, Division 2. There are consequential and related amendments to 41 other British Columbia statutes.

The Supreme Court Civil Rules (“Civil Rules”), which came into force on July 1, 2010, pre­serve (with minor changes) Supreme Court Rules 61 and 62 (the “Probate Rules”) in Civil Rules 21-4 and 21-5. The present Civil Rules 21-4 and 21-5 needed to be modernized and sub­stantially amended to implement the WESA.

Definition of “Spouse”

Section 2 of the WESA addresses when a person is a spouse for the purpose of the Act.

The definition of spouse acknowledges both marriages and “marriage-like” relationships of at least two years, including relationships between persons of the same gender.

Notably, there is no longer any express reference to “co-habiting” in the definition. The relevant date for the pur­poses of calculating the two years is the date of death unless otherwise stated.

In addition to including a definition of when two persons are spouses, the WESA also includes a definition of when they are not spouses. Subsection 2(2) provides that two persons cease being spouses in the case of marriage:

 

(1)             when they live separate and apart for at least two years and one or both have the inten­tion formed before or during separation to live separate and apart permanently; or

(2)             when an event occurs that causes an interest in family property under the Family Law Act, S.B.C. 2011, c. 25, to arise.

Likewise, in the case of a common-law relationship, the spousal status ends when one or both persons terminate the relationship.

The deemed termination of a legal marriage after a two-year separation with only one party’s intent to live separate and apart has several effects, the most significant of which are the loss of a married spouse’s right to vary a will under the wills variation provisions and the lengthening of the separation required before a legally married spouse will lose rights on intestacy.

WESA Section 56 and Spouses

Spouses S 56 WESA Section 56 and Spouses

This is the fourth blog on the upcoming WESA legislation to be introduced March 13, 2014.

The previous blogs on aspects of the new legislation were dated October 31, November 11, and November 30.

There will be dramatic changes introduced in the legislation with respect to spouses.

S 56 (2) ieliminates the categories of judicial separation, divorce and nullity under the Wills Act, and instead simply states that an appointment or a gift to the surviving spouse is revoked if the spouses have ceased to be spouses as defined by the act, namely:

1) They have lived separate and apart for at least two years with one or both having an intention to live separate and apart permanently, or
2) if any event occurs that leads to a division of assets under the Family Law act.

In the case of common-law couples living in a marriage like relationship, the parties cease to be spouses on one or both of them terminate the relationship.

Thus if spouses separate and neglect to renew their wills, the out-of-date dated wills will automatically become outdated in the circumstances described above, and any appointments and gifts to the former spouse made there under will be revoked.

WESA Section 58

The wills, estates, succession act WESA is scheduled to come into effect on March 13, 2014.

This is the third blog by disinherited.com on some of the more significant changes that will be made in the new legislation.

WESA Section 58 introduces a radically significant change to what has traditionally been considered a will.

Under section 58 ( 3):

” the court may, as the circumstances require, order that a record or document, or writing or marking on a will or document be fully effective as though it had been made

a) as the will or part of the will of the deceased person,

b) as a revocation, alteration or revival of the will of the deceased person, or

c) as the testamentary intention of the deceased person.

This will create a situation that will range from e-mails being produced as the true intention of the last will of the deceased, to separation agreements that may be held not only as a statement of the spouses testamentary intentions, but by virtue of 58(3) may be declared by the court to be a valid will or alteration to a will in its own right.

Wills, Estates and Succession Act (WESA) To Come Into Force In Spring 2014.

The long awaited Wills, Estates and Succession Act (WESA) legislation is expected to come into effect within the next 5-6 months with an amalgamation of the Estate Administration Act, The Wills Act, The Wills Variation act rolled into one new overhauled statute.

Initially the legislation had proposed removing the right of an adult independent child to contest a parents estate on the basis that the parent did not adequately provide for the child in the will.

disinherited.com fought this proposal and prevailed so that the law was not changed in that regard from what it had been for almost a century.

Some of the more significant changes are as follows:

Power to cure deficiencies

Perhaps the most significant and only controversial change of all are these increased powers to remedy deficiencies”. There will likely be increased litigation over such “intentions” set out in emails etc.

 

Until WESA comes into force, the court has little power to cure a failure to comply with technical requirements in executing a will. WESA allows the court to look to another “record, document or writing, or marking on a will” to help determine the will-maker’s true intentions, and to give effect to them. Accordingly, the court will have the power to order that a written or electronic record stand as a person’s last will, for example:

an unsigned or improperly executed will
lawyer’s notes from discussions with the person
a copy of a will stored on the person’s computer or electronic tablet
an email sent from the person setting out his or her testamentary intentions

Marrying after Execution of Will
Currently, unless a will is stated to be in specific contemplation of marriage to a certain person, marrying after execution of a will revokes the will. WESA removes this requirement. It had been thought that this requirement may not be well-known by the general public, and thus could accidently frustrate the intentions of the will-maker. As well, given the rising number of common law marriages, this requirement would apply inconsistently to formally married and common law couples.

Age Requirements for a Will
At present, a person must be 19 years old to make a will. An exception applies to those that are or have been married, in order to protect the interests of spouses and children. However, this exception does not extend to unmarried minors with children and/or common law spouses. WESA reduces the age requirement to 16 and removes the exception for married minors so that unmarried and married minors are treated equally.

 

Witness as beneficiary
Currently, if a witness as to the will is a beneficiary or the spouse of a beneficiary under the will, the gift to that person is void. However, WESA will allow some flexibility in such situations. Specifically, it will allow the court to determine whether the will-maker (WESA’s term for ‘testator’) intended to make the gift despite the fact that the person was a witness to the will.

Power to rectify
WESA will give the courts greatly expanded powers to rectify a will. Rectification may be ordered if the court determines that the otherwise valid will does not carry out the will-maker’s intentions because of an accidental slip or omission, a misunderstanding of the will-maker’s instructions by the lawyer, notary or another person involved in the preparation of the will, or a failure to carry out the will-maker’s instructions in drafting the will.

It remains to be seen how far British Columbia courts will go in exercising this new authority.

The changes to be introduced by WESA discussed above give much greater leeway to give effect to the intentions of the will-maker, at the expense of reducing certainty. The court’s expanded powers will likely lead to increased litigation, such as by disappointed heirs coming forward with e-mail or other writings of the deceased to demonstrate that the will does not show the deceased’s “true intentions”.