WILLS, ESTATES AND SUCCESSION ACT

Amy A. MortimoreClark Wilson LLP

January 2014

ROADMAP

1. WESA Snapshot

2. Definitions & Presumptions

3. Wills

4. Benefit Plans

5. Intestacy

6. Wills Variation

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WESA SNAPSHOT

• Comes into force March 31, 2014

• Key objectives: modernize, simplify, consolidate

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REPLACES MODIFIESEstate Administration Act Law And Equity Act – ss.46, 49, 50, 51

Probate Recognition Act Survivorship and Presumption Of Death Act – S.2

Wills Act Consequential amendments to at least 30 other statutes

Wills Variation Act

WESA SNAPSHOT

• Transitional Rules – Part 7

• Basic transitional rule: WESA will generally apply if death occurs on or after March 31, 2014

• Some exceptions to this rule:

– WESA won’t invalidate prior valid will (s. 186(2))

– WESA won’t revive validly revoked will (s. 186(3))

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ROADMAP

1. WESA Snapshot

2. Definitions & Presumptions3. Wills

4. Benefit Plans

5. Intestacy

6. Wills Variation

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DEFINITIONS & PRESUMPTIONS

Definition of “Spouse” (s.2)• Married to each other at the date of death, or

• Lived in a marriage-like relationship for at least 2 years at the date of death

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DEFINITIONS & PRESUMPTIONS

Termination of Spousal Status (s.2)• In the case of a marriage:

– An event occurs that causes an interest in family property to arise under FLA, or

– Lived separate and apart for at least 2 years with one or both having the intention to live separate and apart permanently (Current Act : mutual intention + 1 year grace period)

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DEFINITIONS & PRESUMPTIONS

Termination of Spousal Status (s.2)• Marriage-like relationships

– One or both terminate the relationship (Current Act : mutual intention + 1 year grace period)

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DEFINITIONS & PRESUMPTIONS

Adoption• In determining succession under WESA, effect of

adoption based on Adoption Act • On intestacy:

adopted child may not inherit from natural parent natural parent may not inherit from adopted child

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DEFINITIONS & PRESUMPTIONS

Survivorship• General presumption of “deemed survival” – estate

of each person distributed as if he or she had survived the other (s.5(1))

• If joint tenants die simultaneously – joint tenancy converted to tenancy in common (s.5(2))

• 5 day survivorship rule (s.10)

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ROADMAP

1. WESA Snapshot

2. Definitions & Presumptions

3. Wills4. Benefit Plans

5. Intestacy

6. Wills Variation

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WILLS

Who can make a will? – Minimum age to make a will is 16 (s.36)

– Note: still need to be 19 to make: • Enduring Power of Attorney under Power of Attorney Act

• Representation Agreement under Representation Agreement Act

• Advance Directive under Health Care (Consent) and Care Facility (Admission) Act

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WILLS

Who can witness the execution of a will? – Minimum age for witness is 19 (s.40)

– Witness (or spouse) as beneficiary • generally gift still considered void (s.43(1))

• gift no longer “saved” where more than 2 witnesses

• but may be saved by court application if will-maker intended to make the gift even though person (or their spouse) was a witness (s.43(4))

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WILLS

Relief from Disposition (s. 48)• Gift disposed of during lifetime by nominee

Revocation• Will no longer revoked by the subsequent marriage of

will-maker

• Gift to spouse is revoked upon termination of spousal status, even if subsequent reconciliation (s. 56)

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WILLS

Undue Influence• Burden of proof may shift if “potential for

dependence or domination of will-maker” (s. 52)

• Similar rebuttable presumption already exists for inter vivos gifts

• Recommended Practices for Wills Practitioners Relating to Potential Undue Influence: A Guide (BCLI Report no. 61, October 2011)

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WILLS

Curative Power – section 58• Gives discretion to courts to provide relief in

situations where formal requirements are not met when a will is made, revoked, altered or revived

• Court can order that a “record or document or writing or marking on a will or document” be fully effective if satisfied it represents testamentary intentions of deceased

• Definition of “record” includes electronic information

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WILLS

Curative Power – section 58 (cont.)– Jurisdictions with similar provisions:

• Manitoba – S. 23 Wills Act• Saskatchewan – S. 37 Wills Act• New Brunswick – S. 35.1 Wills Act• Alberta – S. 37 Wills and Succession Act

– Cases usually fall into two categories: 1. formal requirements not met

2. third party document as proof of necessary intention

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WILLS

Rectification – section 59– gives discretion to court to rectify will if it fails to

carry out the will-maker’s intention because of:

1. error arising from accidental slip or omission;

2. misunderstanding of instructions; or

3. failure to carry out instructions.

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WILLS

• Rectification – section 59 (cont.)– Modeled on statutory powers to rectify wills

enacted in England and Wales

• use term “clerical error” instead of “accidental slip or omission” so case law may have limited application

– Extrinsic evidence can be used

– Short limitation period – 180 days

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ROADMAP

1. WESA Snapshot

2. Definitions & Presumptions

3. Wills

4. Benefit Plans5. Intestacy

6. Wills Variation

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BENEFIT PLANS

• Addresses gaps in the Law & Equity Act

• Clarifies the process for designating a beneficiary, and altering and revoking designations

• Broader definition of “benefit plan” (s. 1(1))

• Confirms that beneficiary designations are not subject to terms of benefit plan (s. 84)

• Allows for irrevocable designations (s.87)

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ROADMAP

1. WESA Snapshot

2. Definitions & Presumptions

3. Wills

4. Benefit Plans

5. Intestacy 6. Wills Variation

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INTESTACY

• Distribution: spouse and descendant(s) (s.21)• Increased spousal share

• Spousal preferential share increased from $65,000 to $300,000 or $150,000

• Spouse receives ½ no matter how many descendants(under the current Act, ½ if there is only one child, 1/3 if there are two or more)

• Spouse’s option to purchase spousal home within 180 days from the date of grant (Life estate in spousal home abolished)

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INTESTACY

• Distribution: no spouse or descendant (S.23)• Parentelic distribution schedule

(current Act : degrees of kinship)

• To surviving parents

• If no surviving parent, then to the descendants of parents (e.g. siblings of the deceased, if not, nephew/niece of the deceased)

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INTESTACY

• Distribution: no spouse or descendant (S.23) (Cont.)• Parentelic distribution schedule (Cont.)

• If no surviving parent or descendant of a parent, then to surviving grandparents or descendants of grandparents (e.g. uncles and aunts):– An equal part to the surviving parents of each of the Deceased’s

parents, in equal shares of that part, or if no surviving parents of that parent, then to the descendants of that grandparent

– A part is determined by dividing the estate by the number of parents of the Deceased who have a surviving parent or a surviving descendant of that parent (the Deceased’s grandparent)

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INTESTACY

• Distribution: no spouse or descendant (Cont.)• Parentelic distribution schedule (Cont.)

• Anyone beyond the 4th degree of relationship to the deceased is deemed to have predeceased the deceased

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INTESTACY

• Distribution: no spouse or descendant (Cont.)Degree of Relationship

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ROADMAP

1. WESA Snapshot

2. Definitions & Presumptions

3. Wills

4. Benefit Plans

5. Intestacy

6. Wills Variation

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WILLS VARIATION

• No substantial changes except:

• Limitation period: 180 days rather than 6 months (s.61)

• NOCC must be served on the executors no later than 30 days after the expiry of the 180 day limitation period (s.61)

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WILLS VARIATION

• No substantial changes except (Cont.):• No longer mandatory for a CPL to be registered

against the land within 10 days from filing the NOCC (s.61(5))

• Confirms that commencement of an action by one claimant eliminates the limitation period for other claimants. (s.61(4))

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THANK YOU

Presented By:Amy A. Mortimore

With thanks to my colleagues, Lauren Liang and Areet Kaila