The Wills Variation Act and the upcoming WESA - Death without a Will

It is not always the case that a person has properly drafted and executed their will before death and the upcoming Wills, Estates and Succession Act (WESA) adds some detail on how distribution of assets occurs in such a situation. 

If it is the case that someone dies without a will, s. 21 of the WESA details that a preferential share is given to their spouse.  This preferential share of the spouse ranges from $150,000 to $300,000, dependent on the descendants and the size of the estate. 

The relation to the descendants is one of the key points.  If they are descendants of both the deceased and the spouse, then the preferential share to the spouse is $300,000.  Alternatively, if the descendants are not related to the surviving spouse, then the spouse’s preferential share is reduced to $150,000 to account for the fact that those descendants do not have entitlement to the surviving spouse’s estate. 

Value of the Estate:

If it is the case that the preferential share to the spouse (in either descendant case) exceeds the value of the estate, the spouse is to receive the entire estate. 

If the preferential share to the spouse is less than the value of the estate, then a charge is placed against the estate with the residue being distributed 50% to the spouse and 50% to the descendants. 

 Division 1 — Distribution of Estate When There is No Will

Spouse and descendants

21  (1) In this section:

"household furnishings" means personal property usually associated with the enjoyment by the spouses of the spousal home;

"net value of an intestate estate" means the value of an intestate estate after deducting from its fair market value, both inside and outside British Columbia,

(a) the value of household furnishings distributed to a spouse under subsection (2), and

(b) charges, debts, funeral and administration expenses, and fees under the Probate Fee Act, payable from the estate.

(2) If a person dies without a will leaving a spouse and surviving descendants, the following must be distributed from the intestate estate to the spouse:

(a) the household furnishings;

(b) a preferential share of the intestate estate in accordance with subsection (3) or (4).

(3) If all descendants referred to in subsection (2) are descendants of both the intestate and the spouse, the preferential share of the spouse is $300 000, or a greater amount if prescribed.

(4) If all descendants referred to in subsection (2) are not common to the intestate and the spouse, the preferential share of the spouse is $150 000, or a greater amount if prescribed.

(5) If the net value of an intestate estate is less than the spouse's preferential share under subsection (3) or (4), the intestate estate must be distributed to the spouse.

(6) If the net value of an intestate estate is the same as or greater than the spouse's preferential share under subsection (3) or (4),

(a) the spouse has a charge on the intestate estate for the amount of the spouse's preferential share under subsection (3) or (4), and

(b) the residue of the intestate estate, after satisfaction of the spouse's preferential share, must be distributed as follows:

(i) one half to the spouse;

(ii) one half to the intestate's descendants.