Incoming Wills And Estates Law Will Mean Big Changes For People And Courts

New act updates BC wills and estates law, but could lead to more inheritance disputes

The Wills, Estates and Succession Act, passed in 2009, is due to come into force April 1, 2014. As a result of that looming date, many people are turning a critical eye towards the incoming law. According to The Vancouver Sun, while there is much to be lauded in WESA, there are also parts of the act that critics claim will lead to an increase in will disputes.

Modernizes existing legislation

WESA replaces a number of different laws that had become outdated or failed to take account of recent legislation in other related legal areas, such as family law.

The law to be replaced, for example, included very specific exceptions to allow minors who are married or who are "mariners or seamen" to make a will. Such exceptions may have made sense at one time, but they appear quite outdated today. The new law gets rid of these exceptions and sets the legal age at which a will can be written at age 16 (down from age 19).

Also, WESA takes into account that the definition of marriage and family has evolved considerably over the past few decades. Current legislation largely favours couples who are legally married, whereas the new legislation will give common law spouses a more equal footing with married spouses in how an estate is distributed.

The law also brings a number of other changes into effect, such as clarifying how an estate should be distributed if the deceased did not leave a will, how legitimate heirs are to be determined, and how estates are to be managed in the context of Nisga'a and Treaty First Nation Lands.

Section 58

The section of WESA that is sparking the most attention, however, is Section 58, which could radically change how courts interpret a will. Section 58 allows for a "record" left by the deceased to be considered by the court as a reflection of the deceased's true intentions, regardless of whether or not that record is a part of the legal will.

WESA's definition of "record," however, is quite broad and Section 58 (1) states, "'record' includes data that: (a) is recorded or stored electronically, (b) can be read by a person, and (c) is capable of reproduction in a visible form."

In effect, this section of the law allows the courts to override an otherwise legitimate will if an applicant produces physical evidence, including emails, notes, and letters, that shows the deceased's intentions regarding his estate differed from the actual will. These records do not have to be signed or witnessed in any formal way and critics say they could lead to an increase in legal challenges to otherwise valid wills.

Proponents of Section 58, however, contend that the new law will better equip courts to ensure that the true wishes of the deceased are respected.

What it means for current wills

The new law does not invalidate any wills that have already been written, but it does mean that those wills will be interpreted according to the new rules rather than the old ones.

The gap in time between WESA's passage in 2009 versus its implementation this year has given estates lawyers plenty of time to familiarize themselves with the new rules. For this reason, anybody who has a will, and those who are planning on making one, should consult with an experienced wills and estates lawyer to gauge how the new rules will affect the legitimacy of an existing or planned will.