NOTES FOR CLE-TV ON WESA

Transcription

1 NOTES FOR CLE-TV ON WESA I. INTRODUCTION The purpose of this program is to, within the time allotted, canvas the key provisions to the WESA and some of the key changes to the law arising from the introduction of the WESA. A 2 day WESA course will be offered by CLE in November 21 & 22. Further, a course will be offered in February 2014 focused on probate rules and estate administration procedures. For reference, an updated Transition Guide volume of material is expected shortly and the Probate and Estate Administration Manual is also being updated. II. INTRODUCTORY MATTERS WITH THE ADVENT OF WESA 1. Identification of the documents, timing and effect: The new legislation and regulatory scheme is under the Wills Estates and Succession Act, S.B.C c. 13 as amended by S.B.C c. 6 and S.B.C c.1 (which is referred to as the WESA ) and new Supreme Court Civil Rule 25. The WESA is divided into Parts and then Divisions. For example, the current Wills Variation Act provisions are incorporated into Part 4 Division 6 of WESA. The new Rule 25 makes no distinction between contentious and uncontentious estate matters. The WESA and the new rule come into effect March 31, 2014 (with some exceptions). There are transitional provisions in both the WESA and Rule 25 that need to be carefully reviewed. The general rule is that the WESA applies in respect of deaths on or after the in force date, but there are a few exceptions. The WESA revokes or amends a number of statutes. It entirely revokes: (a) (b) (c) (d) the Wills Variation Act the Wills Act the Estate Administration Act and the Probate Recognition Act. It also amends numerous acts, including:

2 - 2 - (a) (b) the Survivorship and Presumption of Death Act (some portions only and renaming of remaining legislation to Presumption of Death Act), and A portion of the Law and Equity Act. Notably the WESA does not affect the beneficiary designation provisions of the Insurance Act and remains expressly subordinate to those provisions (WESA s. 84(3)). The WESA includes a section on definitions in the WESA, some of which are quite important to note substantively and others are simply changes in style. Some examples of both types are: (a) (b) (c) (d) (e) (f) Will-maker instead of testator or testatrix, Beneficiary/Designated Beneficiary. Beneficiary is specifically defined to mean a person named in a will to receive all or part of an estate or a person having a beneficial interest in a trust created by a will. There is a separate definition for designated beneficiary under Benefit Plans, Benefit Plan is also defined to mean a number of things, for example, pensions, RRSPs and RRIFs and TFSAs (the category can be expanded by regulation), Descendant means lineal descendants through all generation (i.e. issue), Representation Grant means all the kinds of grants that can be obtained including probate, administration with or without will annexed, resealing and ancillary, Gift is defined to include not only a beneficial devises and bequests, but also an appointment affecting property other than in regard to an executor.

3 - 3 - III. FUNDAMENTAL RULE CHANGES Definition of Spouse One of the key changes under the WESA is the change to the definition of spouse and what that means for the rights that arise both on intestacy and under the wills variation provisions of the WESA. Spouse is defined in section 1 by reference to section 2 of the WESA. Subsection 1 of section 2 preserves the two categories of spouses which existed under the former Estate Administration Act and Wills Variation Act being a married spouse and what we call common-law spouses, namely persons who are in a marriage-like relationship. Under section 2 of the WESA, there is a single definition of spouse and therefore the prior slight differences between a spouse for the purposes of the Estate Administration Act in relation to intestacy rights and for a spouse under the Wills Variation Act in relation to variation rights, have been eliminated. A married spouse has the same rights as would a common-law spouse. A spouse can be two persons who are legally married or two persons who live in a marriagelike relationship for at least two years, at the critical time, which is the date of death of the deceased. Both marriages and marriage-like relationships can of course now be between persons of the same gender. There is a wording change to the definition of spouses who are living a marriagelike relationship under section 2(1)(b) of the WESA. The words and cohabit no longer exist in the definition for a common-law spouse. Whether that is significant or not will be something that has to be determined in the future. Also under section 2(2) of the WESA, spousal status can end if any of the two circumstances under subsection 2 arise. In respective married spouses, if there has been either a separation for two years with an intention to live separate and apart permanently formed by at least one spouse, married spouses will be considered no longer spouses for the purposes of the WESA and those individuals will no longer have intestate or variation rights. This is a change from the former section 98 of the Estate Administration Act where separation for more than one year would be a bar to entitlement but not for less. Under the second prong of subsection 2 concerning married spouses, the relationship can also cease where an event arises under the Family Law Act that would give rise to an interest in family property under the new legislation. This particular provision was drafted when the Family Relations Act was in force and where triggering events were the basis for a spouse to seek a division of family

4 - 4 - assets. However, the Family Relations Act has been repealed and replaced by the Family Law Act which no longer uses the concept of triggering event. Rather, under the new family law legislation, the act of separation alone, with the intention of permanency of separation held by one spouse, is sufficient to trigger the ability of the spouses to make a claim for the division of family property under the Family Law Act. What this means is that the two bases upon which a married spouse would no longer has spousal status under the WESA is now inconsistent. The first definition contemplates that there is the two year grace period after married spouses separate where rights still arise for the separated spouse under WESA. The second condition contemplates that immediately upon separation with intention of permanence, the spousal status of married spouses ends. This is obviously a drafting problem that needs to be rectified quickly. If it is not done by the legislative change we would expect that there will be case law. One significant difference arising from the termination provision for married spouses in the WESA is that the intention to live separate and apart on a permanent basis needs only to be formed by one of the parties to the marriage and not by both parties as was the case with the prior requirement under section 98 of the Estate Administration Act. Previously under section 98, both spouses had to have the intention to live separate and apart for a married spouse s intestate rights to be extinguished. A potential outcome based on the current language of section 2(2) of the WESA is that a married spouse could leave his wife, with the intention of separating from her the day before he dies, and his wife would then not be either his intestate heir nor would she have the ability to vary his will if he died leaving a will. Obviously that could in many situations wreak significant unfairness and therefore I would anticipate that this issue will be dealt with either in case law or by legislative reform in the relatively near future. With respect to termination of common-law or marriage-like relationship, section 2(2)(b) of the WESA provides that a marriage-like relationship terminates when one or both persons terminate the relationship. What actions constitute a termination of the relationship is not defined in the WESA and that will obviously be a matter for judicial interpretation. However, the section has changed from the prior provision under section 98 of the Estate Administration Act which provided that common-law spouses with the one year grace period in which they would still have the ability to inherit in intestacy. Under the WESA when there is a termination of the marriage-like relationship by one of the parties to it, all rights cease including the right to inherit in intestacy as well as the right to apply for a variation of the will maker s will.

5 - 5 - The changes to the definition of spouse in WESA should bring a reduction to the possibility that a person will die leaving more than one spouse. Certainly, the legislative provisions that deem a person no longer a spouse for the purposes of WESA rights will avoid the actions that have been previously brought on behalf of long separated spouses under the Wills Variation Act even where the will maker may have entered into a common-law relationship. This protects people who haven t bothered to get a divorce and who are married and who have entered into new relationship of a spousal nature. There should be a reduction of potential claims of contest between multiple spouses and that should be a good thing. IV. SURVIVORSHIP ISSUES Another area of significant change is the survivorship provisions that are currently in the Survivorship and Presumption of Death Act which Genevieve has mentioned will be renamed to the Presumption of Death Act when the survivorship rules are moved into Division 2 of Part I of WESA. Before I get into describing the rules more specifically, there are three important aspects to the new rules that I will summarize: (a) (b) (c) First, the rules in Division 2 of Part 1 of the WESA apply unless the instrument, being the will, the trust or other some other deed, provides for a different survivorship rule than what is in the WESA. Therefore, there is, by drafting, the ability to have different rules than the ones legislatively prescribed; Secondly, the new survivorship rules, now follow the rationale that has been applied in the Insurance Act. In fact, s. 11 of the WESA specifically provides that the Insurance Act presumptions related to the order of death are not altered and take precedence over any of the rules in the WESA. Therefore, for insurance policies, you still follow the presumptions and rules that are in the Insurance Act; and Finally, the new survivorship rules now apply to all situations of inheritances, including intestacy, wills, direct beneficiary designations and joint tenancies. The purpose of the WESA provisions is to eliminate multiple probate and multiple administration and to get gifts to the alternate intended beneficiaries rather than to the beneficiaries of the second person to die.

6 - 6 - Survivorship Rules At common law, if a person survived another person by any period of time, then he would have survived the other for all purposes related to inheritance and property rights. Commonly, lawyers draft around that by including survivorship provisions in a will or trust. However, if there is no such drafting, survival by even a minute means survival. This is now no longer the case under the survivorship rule under s. 10 in the WESA. For purposes of rights under WESA, a person who is a beneficiary (either by will, intestacy, direct beneficiary designation or otherwise) must survive by 5 days in order to take a benefit. It is possible to draft a longer period for survival but a shorter than 5 day period cannot be selected and drafted in a document. This 5 day survivorship rule applies similarly to where property is held by two persons as a joint tenants. That is, the surviving joint tenant must survive by at least 5 days (or possibly longer if that is so provided for in an instrument) in order for the right of survivorship to apply. If the other joint tenant fails to survive by the 5 days mandated in the WESA, then there would be a severance of the joint tenancy into a tenancy in common and one-half of the asset would go into each owner s respective estates. However, note that there is no 5 day survivor rule under the Insurance Act. If the named beneficiary survives the policy owner by any time, the beneficiary takes. It is only where the order of death is not known as between the named beneficiary and the policy owner that the presumption that the beneficiary predeceased the policy owner arises. Order of Death Rules Let s now review the current rules related to the order of death that are codified in the Survivorship and Presumption of Death Act. The rule is that where two persons die in circumstances where the order of death is not known, the younger is presumed to have died last or to have survived the older, irrespective of how gifts might pass under intestacy, by will or any other instrument or operation of law. The new order of death rules now eliminate the presumption that the younger always survived the elder.

7 - 7 - Executorship. If two people die together and one is the executor of the other s will, WESA presumes that the executor predeceased the will-maker for the purposes of determining executorship. Therefore, the alternate executor would have first right to probate. Beneficiary. If two people die together and one is the beneficiary of the other s will conditional on the beneficiary surviving the will-maker, WESA presumes that the beneficiary in fact predeceased the will-maker. Therefore, the gift to the beneficiary would lapse. Conditional Gift. If a gift to a remainder beneficiary is conditional on the first beneficiary dying before the will-maker and the first beneficiary and the willmaker die together, WESA presumes that the first beneficiary died before the willmaker and the remainder beneficiary would take the gift. An example would be to my daughter if my husband fails to survive me in the case of my husband and I dying together, my husband will be presumed at law to have died before me and the gift to my daughter takes effect. Class Gifts under Will. If two people who are the only beneficiaries of a class gift die together, then WESA presumes that each survived and each of the deceased beneficiary s estates takes their share. This avoids a lapse of that gift. Joint Tenancies. If two joint tenant owners die together, there is a deemed severance of the joint tenancy immediately prior to death and the asset is then considered to be owned by the two as tenants-in-common and each estate would own one-half of the previously jointly owned asset V. CHANGES THAT AFFECT THE MAKING OF A WILL Formal Validity Issues Overall the manner of making a will in British Columbia is not changing. A will still must be written and signed at its end before two witnesses just as under the current Wills Act. However, there are going to be a number of changes to who can make a will and what invalidates wills or parts of wills. 1. First, it will now be possible for a 16 year old to make a will (although a witness must still be 19). 2. Beneficiaries or their spouses still invalidate their gifts by witnessing the will, however, the court now has a power to order that the gift is not void if the court is satisfied that the will-maker intended to make the gift to the

8 - 8 - person even though the person or his or her spouse was a witness (WESA s.43). Recall that spouse includes common law spouses for this purpose. This trend of allowing wills affected by technical defects to be saved is also found in the recognition of documents not meeting the formal validity requirements to be discussed later. 3. One of the most significant changes to this area is that marriage no longer revokes a will under the WESA. This is a reversal of the current law. As a result it will no longer be necessary to make wills in contemplation of marriage. However, it can be anticipated that there will be situations where this may give rise to variation claims by a spouse not provided for in a will made before the marriage. 4. Gifts and appointments as executor to former spouses remain revoked by the termination of the relationship unless otherwise intended (WESA s.56). As with the witnessing provisions, the definition of spouse now ensures that this result arises both for legally married and common law spouses. 5. Finally, in relation to wills made outside of B.C. the categories of wills that will be accepted and for what purposes has broadened. Section 80 of the WESA sets out a list of wills that will be formally valid and admissible to probate. The new categories on the list include wills made in accordance with: (a) (b) (c) the law where the will-maker was ordinarily resident at the date the will was made or at date of death, the country where the will-maker was a citizen again either at the date the will was made or at the date of death or where the will-maker s property was situated at the date the will was made or at the date of death. These rules now apply equally to both real and personal property so a holograph will validly made in a jurisdiction that permits them could pass land in B.C.. The notion that real property no longer has a special status as compared to personal property is a theme that we see is repeat throughout the WESA.

9 - 9 - Substantial Validity There has been no change to the common law test for capacity under WESA although British Columbia Law Institute has recently released a report regarding some possible changes. The WESA does, however, affect the law of undue influence, addressed later in these materials. There are also several changes to common law rules affecting wills, some of which were quite obscure and as result sometimes troublesome (see Part 4 Division 3). For example, the presumption that a gift by a will-maker to a child is an advancement that is intended to revoke a gift in favour of the child under a will is dispensed with by the WESA. Likewise the doctrine of election is abolished (this was where a will-maker gave a gift of property that he did not own, under the will and the beneficiary whose property it was had to choose between accepting the terms of the will and keeping their own property. Section 51 now says that a gift of unowned property is void (although there is an ability to put a condition on a gift under a will that the beneficiary dispose of his or her own property in a certain way). VI. BENEFIT PLANS One of the most significant changes to this area of practice is first that the benefit plan regime is consolidated in one spot: Part 5 of the WESA (sections 84 to 100). There are also much more detailed provisions, similar to the life insurance regime. Under section 85 designations can also be made by a person appointed by enduring power of attorney or committee as they are included in the definition of participant. However, such designations, alterations or revocations of beneficiaries can only be made by such persons where authorized by the court. Section 90 goes on to say that where certain representatives (an attorney, committee, representative under a section 9 Representation Agreement and a person appointed under section 51(2) of the Indian Act) are acting, they can make a new designation of the same beneficiary. While section 90 does not expressly override the basic requirement for court order in section 85, it would seem this is the intent. This is consistent with the Power of Attorney Act provisions. There are also specific provisions regarding the kinds of designations that can be made. Where, for example, multiple persons are named, in the absence of a division of the benefit the named beneficiaries share equally (section 86). Section 92 also expressly permits the appointment of a trustee for a designated beneficiary. This should facilitate the designation of trustees where previously there was pushback from plan providers.

10 Section 95 expressly states that not only is a benefit plan designated to a beneficiary not part of the estate, but it is now expressly stated to be outside the reach of the participant s creditors. This more closely tracks the language of the Insurance Act. There are also specific provisions with respect to the effect of designations under wills and the effect of the revocation or revival of those wills. VII. CHANGES THAT AFFECT INTESTACY The basic notion that the closest family members to the deceased share in the estate remains unchanged, but the manner in which it happens is significantly altered. Spousal Provision First the provision for spouse is increased and changed (WESA s. 21). Of course, if the intestate dies without lineal descendants (i.e. issue) then the spouse takes the whole of the estate. Where there are descendants, the spousal preferential share has increased from the first $65,000 to either $150,000 if the descendants are not also the spouse s descendants (think children from a prior marriage) or $300,000 if all the descendants are common to both spouses. The amounts are adjustable by regulation. The spouse receives ½ of the residue regardless of the number of children of the deceased. In addition, there is no longer a life estate for the spouse in the spousal home. Instead, there an option to purchase the spousal home granted to the spouse (using the spouse s part of the estate as part of the purchase price as necessary) (see sections for the complete group of provisions). If there is a spouse and a spousal home the personal representative gives notice at the time the representative grant application is made of the right to acquire the home and the spouse then has 180 days to exercise the right (unless the time is altered by the court). If there is a dispute about the value of the home the court may enter the fray and determine the value. Where the purchase of the home would work a significant financial hardship on the spouse and certain other conditions are met then the court may take a number of steps, including vesting the spousal home in the spouse, specifying the amount the spouse must pay for the home, or converting the unpaid interest of the descendants in the home to a charge against title in favour of the descendants. Such a charge is payable when directed by the court and in default of such direction within 12 months after the earliest of (1) the death of the spouse, (2) the date the spouse ceases residing in the home and (3) the completion date of the home s sale. Notably, such charges do not carry with them personal liability of the surviving spouse and can only be collected against the property itself (WESA s. 35(7)).

11 Recall that the ability of a separated spouse under the current section 98 of the EAA to apply to share in an intestate estate has been dispensed with. Once a person ceases to be a spouse any claim to the estate on intestacy is lost. There remains the ability of the court to divide the spousal share among two or more spouse, however, this is less likely given the new definition of spouse. Where there is no spouse, but there are descendants then the distribution among descendants is essentially to the issue per stirpes (WESA s. 24), much as it was previously. There is no limit on the degree of relationship that will entitle a descendant of the intestate to share in the estate. Where there are no descendants the manner in which more remote relatives share in the estate has changed from the consanguinity system to the parentelic system (WESA s. 23). Essentially the division is now done keeping in mind the sides of the family of the intestate instead of simply looking for the closest relatives. This is fairly easy to apply where the intestate is survived by parents. Where the parents are deceased, it is to the parents descendants (i.e. siblings or their descendants) who share in the estate. Where there is no one in this category then an equal part is given to each parent s side to the grandparents or their descendants and where there again are no such persons then to the great-grandparents or their descendants again divided between the deceased s parents families. So for example, if an intestate is survived by no spouse, descendants, parents, siblings or their descendants but by his maternal grandmother and an uncle and aunt on the paternal side then the grandmother would take one half the estate and the uncle and aunt would share the other one half as descendants of the maternal grandparents. Under the current system it would be the grandmother alone who would take the whole estate. The search for heirs only goes to the great grandparents and their descendants if there are no grandparents and their descendants. There are, however, limits to this system. Section 23(3) limits the degrees of relationship that may share in an intestate s estate; anyone beyond the 4 th degree of relationship is excluded. This excludes, for example, children of first cousins but not great uncles. Where there are no persons entitled then the estate escheats to the Crown. VIII. CHANGES THAT AFFECT OBTAINING A REPRESENTATION GRANT Part 6 of WESA, along with the new Rule 25 of the Supreme Court Civil Rules, house the provisions related to probate and estate administration. The current procedure for obtaining a grant and for administering an estate is largely preserved.

12 However, Part 6 of the Act and Rule 25 gives more guidance and structure on certain matters and prescribes certain forms and dictate certain procedures to be used than currently exists under the Estate Administration Act and Rules 21-4 and 21-5, which largely duplicated the former Rules 61 and 62 of the Rules of Court. The new probate Rule 25 and the process for administering the estate will be subject of a separate CLE course in February of That CLE will be include a workshop that will take lawyers and paralegals through an actual probate application, applying the new rules and forms. I think that this course is invaluable for practitioners who do probate and estate administration work. Therefore today, I will only touch on a few key changes contained in Part 6 and Rule 25. Part 6 WESA states that an applicant for a grant of probate or administration must give notice (s.121) and make disclosure (s. 122) in accordance with the Supreme Court Civil Rules. Therefore, the WESA provisions on estate administration link directly with the processes set out in Rule 25 that must now be followed and forms that must now be used. Two provisions in Part 6 of WESA that do not exist in the current legislation are discussed below. Priority of Administrator. On the matter of administration in intestate estate or administration with will annexed, there are now priority rules for choosing an administrator, which largely codify how the common law has operated. In general, on an intestacy, the surviving spouse has first priority to be the administrator. Thereafter, it is the person who is the next closest as kin. If there are a number who have equal status, it will be the person supported by a majority of the beneficiaries. In the matter of a grant of administration, the court still has the discretion not to require security to be posted. Passing Over of Personal Representative. Section 158 is a new provision that was not previously in the Estate Administration Act. It allows persons who have an interest in the estate (including beneficiaries, intestate heirs, creditors and coexecutors) to apply to remove or pass over a person who has the right to be the personal representative. The provisions sets out some of the grounds for removal or passing over, including mental capacity, refusal to act, inability to make decisions, unresponsiveness, etc.

13 Rule 25 Rule sets out the transition provisions. Applications made prior to March 31, 2014 are deemed to be the new documents under WESA and therefore, there could be applications that straddle both the old and new processes. The application process is largely the same as exists now. Some key changes are: Authorization to Obtain Estate Administration. One significant change is that there is now a mechanism to permit an executor or an administrator to obtain a document from the court which gives them the authority to secure information about the deceased person s assets and liabilities from third parties in order to be able to complete the information required for the Disclosure Statement. The way to apply for this Authorization is prescribed in the new Rule. This has been developed to overcome the chicken and egg problem created by the refusal of many financial institutions to provide information about the deceased person s assets and liabilities without a grant being first issued to the party requesting the information. Notice. There must be delivery of the notice of the application 21 days prior to the submission of the materials to the registry. Notice must also be given, in addition to the former persons entitled, to all executors and alternates and any person who has served a citation. The notice form itself is prescribed and has the inclusion of more information than was previously required. Delivery methods for the notice have been expanded. Citation. The citation process is preserved but there is a specific form for citation and rules under Rule for how citations are to be delivered and the length of time that they last and what is the process that would be available to a person who has been cited to probate a will. Failure to respond by the person cited may be deemed to be a renunciation. IX. KEY CHANGES THAT AFFECT THE ADMINISTRATION OF ESTATES GENERALLY The overall pattern of estate administration is not going to change significantly, but there are some notable differences under the WESA. 1. There is now the ability for the court to accept a will that does not meet the formal requirements for validity (WESA, s.58). From an estate administration perspective this will mean the search for the Will needs to be even more broad. It may well be that these applications will need to come

14 before probate issues in most cases much like rectification applications now do. 2. The notice to creditors, is now expressly set out in the WESA section 154 (as opposed to the Trustee Act). It is no longer going to be necessary to advertise in the newspaper (the most expensive part of the Trustee Act scheme). Advertising in the Gazette is all that is required. The notice period is extended to be not less than 30 days from the date of the publication. There is an issue with respect to advertising for estates not fully administered before the WESA comes into force. The transition provision say that this provision does not apply to deaths that occur before the in force date. However, as of March 31, 2014 section 38 of the Trustee Act is repealed. For those estates where the deceased died before then, but for which there has yet to be an advertising for creditors, how is the executor to obtain protection? This gap is presumably unintentional and could well be fixed by legislative amendment. In the meantime, I advise executors and administrators to advertise promptly. 3. If the estate does not have sufficient funds to make all of the specific gifts in the Will, the new abatement rules change the common law rules (WESA, s.50). I noted before that the distinction between real and personal property is being dropped in a number of places. This is one of them. Under the new rules real estate does not abate last as it does under the current rules, but abates together with personal property. 4. Likewise the current Wills Act rule that a mortgage on land passes with the land unless otherwise stated is expanded under the WESA to also apply to personal property. The rule is also modified to apply only to purchase money security interests, which is a defined term (WESA, s. 47). From an executor s point of view the reason for borrowing, not just the existence of the security will need to be identified. 5. There is now a prohibition against distribution of an estate for 210 days from the issuance of an estate grant (as opposed to the former 6 months under the Wills Variation Act) to ensure that there are no claims launched in the meantime. The section applies to all estates, even where there are no variation claimants (section 155). The period dovetails with the variation provisions that require the notice of civil claim to be filed within 180 days and served on the executor within 30 days of issuance. Executors will need to insure that a consent to distribution is obtained from all beneficiaries and

15 intestate successors who are interested in the estate before any distribution within the period. 6. Under new Rule 25-13, passings of accounts can be initiated by the beneficiary or the personal representative. There is also now an express ability to obtain summary passing without reference to Registrar. This will assist in those situations where an unfamiliar court queries the jurisdiction to undertake such a proceeding. Under Rule 25-13, if there is a reference to the Registrar the default procedure is that the Registrar will certify his or her findings (as opposed to sending it back to the court for confirmation). The basic documentation for a passing of accounts is largely unchanged under the new Rules. 7. There are some welcome provisions in relation to the discharge of personal representatives. Specifically, section 157 expressly allows for an application for discharge of personal representative and section 157(6) provides that such an application does not discharge or remove the person as trustee. This change should allow the replacement of a trustee appointed under a will, who also was the executor of that will, without resort to a court order. As well, it is now possible to apply for discharge without notice in certain circumstances including where a guardian has consented on behalf of a minor. X. CHANGES THAT AFFECT ESTATE LITIGATION Caveats. Currently, a challenge to a will can be made by way of a caveat filed in the probate registry that would prevent an estate grant to issue. This process is preserved but under the Rules, the document is now called a Notice of Dispute. The Notice, once filed, expires after 1 year and is not renewable without leave of the court. This now puts a specified time frame on ensuring that the dispute about the will is settled or that litigation is commenced within the 1 year period. Recognizing Non-Compliant Wills. Under the current law, wills can be invalid for failing to meet the necessary requirements for formal validity. Most commonly, the execution or witnessing requirements are not met. Under s. 58 of the WESA, there is an express provision that permits the court to cure a will that has not been properly executed or witnessed and opens the door for holograph or electronic wills, previously which were entirely not valid in British Columbia, to be capable of rectification. Section 58(3) provides that even though the making, revocation, alteration or revival of a will does not comply with WESA, the court may order that a document be fully effective as the will or part of the will.

16 It now appears that if a document expresses the testamentary intentions of a deceased person, then the court is able to declare it to be a valid will, even if none of the formal validity requirements had been met. This applies also to revocation and alteration documents. Therefore, in reviewing what might be the last testamentary wishes of a deceased, many more documents may be relevant than what would be previously be considered. Because British Columbia never had a curative provision in the past, when and how a court will apply its curative powers under s. 58 is likely to involve a consideration of case law from other Provinces that do have a substantial compliance provision. Interpretation Issues. Under the current law, a problem in a will may be subject to correction based on some very archaic distinctions arising from the division of the English court of probate and court of construction. Our common law was not always very consistent in applying those rules and there was a bit of confusion about what our court could do to rectify a mistake in a will and what type of evidence it could receive in deciding on a rectification. This has been simplified with the new rectification provision under s. 59 of the WESA. Section 59 extinguishes any differences between the court sitting as a court of construction or a court of probate. At any time in the process, a will can be rectified by the court if it determines that the instrument fails to carry out the willmaker s intention because of any of the 3 circumstances I list, namely: 1. if the error arises from an accidental slip or omission; 2. if there was a misunderstanding of the will-maker s instructions (obviously by the drafter); or 3. if there was a failure to carry out the will-maker s instructions (this would be where there was some negligence by the drafter). In the above three circumstances, it is open for the court to accept extrinsic evidence of the will-maker s intention. This expansion to what will be admissible evidence puts into prominence the memory and therefore, the notes of the solicitor in taking the client s instructions as that is going to be a first source for determining intention where the will was made with the assistance of a lawyer. The rectification application is to be brought within 180 days after the representation grant is issued unless the court otherwise orders. The section protects personal representatives who distribute the estate in compliance with the

17 day rule and potentially subjects beneficiaries who have received the estate to a claw-back claim if rectification is granted and affects how the estate ought to be distributed. Substantive Validity Challenges. Undue Influence is specifically addressed in the WESA under s. 52, which is a new provision. Under the current law, a person who alleges that a will is invalid by reason of lack of free will in the will-maker s making of it by reason of undue influence having been exerted over the willmaker, carries the burden of proof or has the onus in making this out. Under the new provision in WESA, where a party was in a position where there was potential for dominance over the will-maker or where the will-maker was dependent upon that person, any gift that is made to that party that is challenged based on undue influence shifts the onus to the recipient of the gift to uphold it. This is the current law in relation to inter vivos gifts that are challenged for undue influence. As a result of the change in the onus on gifts to persons in position of power to the will-maker or where the will-maker is dependent on the beneficiary, query whether lawyers should take some step to ensure that the client is operating with full knowledge and approval and of free will so that there is evidence to rebut the presumption of undue influence were the gift to be challenged in the future. WILLS VARIATION The former Wills Variation Act is now found in Division 6 of Part 4 of the WESA. The former statute is largely preserved. Section 2 is now section 60 and for the most part, the provisions under the former Wills Variation Act remain the same in the new sections that are transferred over into Division 6 of Part 4 of the WESA. Limitation Period Change. The limitation period for commencing a wills variation claim under WESA has been reduced from 6 months to 180 days after issuance of the grant of probate. This is minor but it could be tricky if someone was waiting to file at the last moment as 180 days is shorter than 6 months. and therefore one has to be careful about bringing forward the proper date for bringing a claim after the date of the issuance of the probate. 30 Day Service on Executor. Further, there is now a mandatory requirement to serve the Notice of Civil Claim upon the Executor of the Will and within 30 days of the filing. Optional CPL. Under the WESA, there is now no longer a requirement to file a certificate of pending litigation over property in an estate. That is now optional but if one wishes to file a CPL, it must be done within 10 days of the filing the Notice

18 of Civil Claim. Therefore the decision as to whether to make a claim over an asset in specie and to prevent its realization and sale by an executor must be done at the outset to comply with the 10 days filing requirement. Previously, under the WESA, a legally married spouse had the right to apply for a variation, irrespective of the length of separation and irrespective of how property rights may have been divided upon separation. Now, a legally married spouse loses the right to apply if they have lived separate and apart for more than two years (and possibly, immediately upon separation with the intention of permanent separation under the Family Law Act). As such, married and long-separated but not divorced spouses are eliminated as potential claimants. There has been no change in the WESA to the category of common law spouses who still have the right to apply but there may be more litigation with respect to whether a common law spousal relationship is in place at date of death or has been terminated prior to death. The one most significant change in the variation cases to be decided under the WESA arises by reason of the changes in the Family Law Act and not the changes in WESA. Formerly under the Wills Variation Act, the court had referenced to the now repealed Family Relations Act in measuring the legal obligation owed to a spouse based on the guidelines set out by the Supreme Court of Canada in Tataryn. Under the former Family Relations Act, there was a major distinction drawn between the property division rights of married spouses and those in a marriagelike relationship, in that the latter did not have automatic property division rights. Common law spouses only had the right to seek spousal support under the FRA. They did not have a prima facie right to an equal division of family assets. Common law spouses had to make their claims under unjust enrichment and constructive trust claims. This is no longer the case with respect to division of family property under the Family Law Act. Both married and non-married spouses are subject to the same property division scheme. As such, when measuring the will-maker s legal obligations to a surviving common law spouse, the court on a variation claim will need to consider what that spouse might receive under the equal division of family property scheme under the Family Law Act. As a result, I would be careful about relying on the prior case law that assessed the legal obligation owed to a commonlaw spouse as they are now really not that relevant.