This is a summary of British Columbia’s new Wills, Estates, and Succession Act, which was to come into force in early 2012 and has been delayed to Spring 2013. The new Act repeals the Estate Administration Act, Probate Recognition Act, Wills Act, Wills Variation Act, and sections of the Law and Equity Act, and Survivorship and Presumption of Death Act.
The delayed reading of the Act into law has been done to allow people more time to understand the changes, according to the government. The proposed changes described below are still expected to become the law.
Note that the changes will not make a will written before the Act passes invalid, but it may change how that will is interpreted. For example, gifts to children during a will-maker’s lifetime will not be treated as advances out of the estate under the new law, and that interpretation will be made under the new law even if the will was written before the new Act came into force.
Here is a point form summary of the major changes:
- Definition of “spouse” includes anyone in a marriage-like relationship for at least 2 years.
Intestacy (Dying Without a Will)
- No change where spouse survives without issue (now called “dependants”)
- If spouse survives with dependants, spouse receives household furnishings and spousal preferential share
- If all descendants are descendants of the intestate and the surviving spouse the spouse’s preferential share is $300,000
- If one or more descendants are not descendants of the surviving spouse, the spouse’s preferential share is $150,000
- After payment of spouse’s preferential share 1⁄2 residue goes to spouse and 1⁄2 is divided among descendants
- Personal Representative of the intestate is forbidden to dispose of spousal home for 180 days from death of intestate to allow surviving spouse time to decide if he/she wishes to purchase it
- If no spouse or descendants, all to the intestate’s parents equally
- If no parents then to descendants of parents
- If no spouse, descendants, parents or descendants of parents then to grandparents or descendants
- If no heirs, then to government per Escheat Act as before
Designations of Beneficiaries of Benefit Plans
- Benefits payable to designated beneficiaries in RRSP and Insurance plans are not part of the estate and not subject to claims of deceased owner’s creditors
- Marriage no longer revokes a will
- Legal age for making a will changed to 16
- Legal age for witnessing a will is 19
- Gifts to or appointment as executor of someone who at death of will-maker is no longer a spouse of the will-maker lapse because former spouse is deemed to have died before the will-maker
- Gifts to children during will-maker’s lifetime are no longer treated as advances out of the estate
- In common tragedies, the seniority presumption that oldest died first is repealed and replaced with presumption that each died before the other
- And, when joint tenants die in a common tragedy the property is deemed held in tenancy in common
- For gifts in a will, a beneficiary who does not survive the will-maker by 5 days is deemed to have died before the will-maker