Coming Changes to the Wills Variation Act:
In less than a year from now the new Wills, Estates and Succession Act (“WESA”) will come into force bringing changes to the legal framework, including the Wills Variation Act ("WVA"). As of March 31, 2014 the new act will replace the Wills Variation Act, the Estate Administration Act, the Probate Recognition Act, and the Wills Act. This new harmonized statute was passed Sept 24, 2009 with new probate rules and hopes to deliver greater certainty and clarity for those drafting their wills and those responsible for executing them.
As you may know our website focuses on the WVA and its ability to provide a means for spouses and children of a deceased to bring action to vary a will due to that it does not make adequate provision for their proper maintenance and support. The important question becomes: What effect, if any, does the WESA have on the WVA?
Previous to the current changes, there had been proposals to amend the WVA in a potentially tragic way. The proposed changes included removing adult children’s ability to bring a claim unless they were incapable of independence and also a push to move away from lump sum payments in favour of periodic orders under the act. Thankfully, after much debate and reconsideration the proposals were denied.
Fortunately, the WESA only seeks to make minor changes in relation to the WVA and will still allow a spouse or child to bring claims against a will that does not provide for their proper maintenance and support.
- Definition of Spouses:
S.2(2) of the WESA details that a person will cease to be a spouse if:
(a) In the case of a marriage
(i) They live separate and apart for at least 2 years with one or both of them having the intention, formed before or during that time, to live separate and apart permanently, or
(ii) An event occurs that causes an interest in family property, within the meaning of the Family Law Act, to arise, or
(b) In the case of a marriage-like relationship, one or both persons terminate the relationship.
- The WESA has not added a definition of “Children”. The WESA does include that an adopted child is not entitled to the estate of his or her natural parent except through the will of the natural parent and that the adoption of a child by the spouse of a natural parent does not terminate the relationship of parent and child between the child and the natural parent for purposes of succession.
- The limitation period for bringing an action will change slightly from 6 months from the date of issuance of the grant of probate to 180 days.
- The new act also extends the period for which the executor of a will must not distribute the estate from 6 months to 210 days.
The WESA will not change any situation where the testator has died before March 31, 2014 as the legislation only applies after such date.
The combined legislation is the product of lengthy revision and reports prepared by members of the Succession Law Reform Project of the British Columbia Law Institute along with collaboration with legal practitioners and academics. With this new legislation comes consolidation and harmonization in the area of wills and inheritance and we look forward to the coming changes.
The official press release for the legislation may be found here.
For any further questions regarding the WVA and upcoming WESA and how it may touch your situation, please contact us: