The Wills, Estates and Succession Act (Bill 4), which consolidates and modernizes succession-related statutes into a single act, has passed third reading and is expected to come into force in 2011. The new legislation is generally based on the report of the British Columbia Law Institute, which is an independent research institution dedicated to modernization of law. However, in some controversial areas the government declined to follow its recommendations. Most notably, it rejected the recommendation for a wholesale reform of the Wills Variation Act, for example, to preclude independent children from bringing claims to vary a parent’s will.
The following are a few of the many changes that the new Act introduces.
When a person dies without a will (intestate), his estate is distributed under the Estate Administration Act to the relatives of closest kin. Degrees of kin are counted upward from deceased to the nearest common ancestor and then downward to the relative. For example, a degree of kinship of a nephew is 3: 1 to parent, 1 from parent to sibling, and 1 from sibling to nephew.
This scheme is replaced with a parentelic system, under which the descendants of the nearest common ancestor share the estate. The estate passes to grandparents and their descendants, and if none to great-grandparents and their descendants, and so on down each line descended from an ancestor until an heir is found. This system tends to divide the estate more evenly between the two sides of the deceased’s family.
Another significant change is that where the deceased is survived by a spouse and children, the spouse will receive the first $300,000 of the estate and half of the remainder. This is reduced to $150,0000 and half the remainder if the children are only of the deceased, and not of the spouse and the deceased.
Part 4 of the Bill deals with succession where there is a will. Most notably, it removes the provision which invalidated a will because of a subsequent by marriage of the maker, and adds a provision which revokes a gift to a spouse from whom the deceased lived separate and apart for at least two years.
As well, it extends the presumption of undue influence for gifts made during the lifetime to bequests in a will. Where a person challenges a bequest made to a person who was in a position of influence over the deceased, the recipient has onus to prove that he or she did not use undue influence over the deceased.
For small estates (value not yet defined), the Bill introduces a smaller and cheaper procedure for administration of the estate. This procedure, although it still requires an application to the court, avoids the legal formality of probate or grant of administration necessary for larger estates.