The Wills, Estates and Succession Act (WESA) passed by the B.C. legislature on Sept. 24, 2009 finally comes into force in the New Year and it’s a sweeping change.
After March 31, the new law brings together and updates various statutes with the twin aims of providing greater certainty for individuals who leave a will and simplifying the process for those responsible for distributing an estate.
Among its benefits, the government says the act clarifies the process of inheritance when a person dies without leaving a will; makes the process easier for a spouse to transfer the jointly held title of the family home when a partner dies; clearly outlines the sequence in which to look for heirs; provides the courts with more latitude to ensure the last wishes of the dead are respected; clarifies obligations relating to property inheritance in the context of Nisga’a and Treaty First Nation lands; and lowers the minimum age at which a person can make a will from 19 to 16 years old.
New probate rules also come into effect with the act, which was the product years ago of a long public process that included the participation of the Supreme Court and the B.C. Law Institute.
The hope is these rules will ensure consistency for probate applicants and streamline court processes to provide more timely service.
Still, there are nervous nellies.
A recent meeting to explain the changes to some 300 lawyers produced as much anxiety as it eased: Solicitors wrung their hands with concern; litigators rubbed theirs at the prospect of more, not fewer lawsuits as a result of the changes.
Section 58, for instance, introduces a radically significant idea about what can be considered a will, saying: “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.”
Vancouver lawyer Trevor Todd, who runs disinherited.com and participated in the development of the law, says this could create awkward situations.
“Until WESA comes into force,” Todd said, “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.”
He said that could include 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.
It will become possible for emails to be held out as the true intention of the will, he said, or for a separation agreement to surface that may be held out to be a statement of the spouse’s testamentary intentions and may be declared by the court to be a valid alteration or an actual will
Rectification also may be ordered if the court determines that an 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.
Those increased powers vested in the court are probably the most controversial changes.
“The court’s expanded powers will likely lead to increased litigation, such as by disappointed heirs coming forward with email or other writings of the deceased to demonstrate that the will does not show the deceased’s ‘true intentions,’” Todd said.
In terms of other changes, right now, unless a will states you are specifically contemplating marriage to a certain person, marrying after the execution of a will revokes it. WESA removes this stipulation.
“It had been thought that this requirement may not be well-known by the general public, and thus could accidentally frustrate the intentions of the will-maker,” Todd said.
“As well, given the rising number of common law marriages, this requirement would apply inconsistently to formally married and common law couples.”
Todd added that he thought the new law brought big improvement by reversing the onus in cases where allegations of undue influence arose so that it falls on those who received the gift.
If the validity of a will is challenged on the ground of undue influence at the moment, the onus is on the person making the allegation to prove it.
Initially, the law proposed removing the right of an adult independent child to contest a parent’s estate because the child was not adequately provided for in the will.
Todd was among those who fought that particular proposal and prevailed so that the century-old provision was not changed.
In general, WESA gives the courts much greater leeway to give effect to the intentions of the will-maker — whether that increases or reduces certainty, we’ll have to wait and see how the judges exercise their new authority.