A Guide to the "Wills, Estates and Succession Act" of British Columbia

Navigating legal documents can be a daunting task. The "Wills, Estates and Succession Act" of British Columbia is no exception. However, understanding this crucial piece of legislation can be of immense benefit, especially when dealing with matters of inheritance, wills, and estates. This guide aims to break down the Act section by section, making its key points more accessible for the general public.

1. Definitions and Interpretation

Before diving into any legal document, it's essential to understand the specific terms used. This section ensures that any terminology or phrases within the Act are clearly defined. It's the foundation that sets the stage for all the subsequent parts, ensuring clarity and consistency in interpretation.

Key Definitions from the "Wills, Estates and Succession Act" of British Columbia:

• Beneficiary:

1. A person named in a will to receive all or part of an estate.
2. A person having a beneficial interest in a trust created by a will.

• Benefit Plan:

1. Pertains to various plans benefiting employees, former employees, agents, their dependents, or a designated beneficiary. This can include pension plans, welfare funds, profit-sharing funds, trusts, schemes, contracts, or arrangements.
2. Funds, trusts, or arrangements for annuity payments.
3. Registered retirement savings plans or retirement income funds.
4. Tax-free savings accounts and pooled registered pension plans, among others.

• Court: Refers to the Supreme Court.
• Descendant: Refers to all lineal descendants through all generations.
• Designated Beneficiary: A person to whom a benefit is payable by a designation.
• Estate: Refers to the property of a deceased person.
• Foreign Grant: A grant of probate or administration issued by a court outside British Columbia.
• Foreign Personal Representative: A representative to whom a foreign grant has been made.
• Intestate: Describes a person who dies without leaving a will.
• Intestate Estate: The estate of a person who has died without a will.
• Intestate Successor: A person entitled to receive part or all of an intestate estate.
• Personal Property: Any property that isn't land.
• Property: Encompasses both land and personal property.
• Security Interest: An interest in property that ensures payment or performance of an obligation.
• Testamentary Instrument: A will, designation, or document naming a person to receive a payment or series of payments upon death under a plan similar to a benefit plan.

2. Fundamental Rules

Every legal framework has a set of core principles, and the "Wills, Estates and Succession Act" is no different. The "Fundamental Rules" section lays down the foundational principles related to wills, estates, and succession, providing a roadmap for the rest of the Act.

Here's a summary of part 2:

• Definition of a Spouse: The document begins by defining when two individuals are considered spouses under the Act. The conditions include being married or living in a marriage-like relationship for a minimum of two years. It also describes situations when two individuals cease being spouses.
• Termination of Spousal Relationship: The document outlines the circumstances under which the spousal status terminates, either due to events affecting family property or the termination of a marriage-like relationship.
• Relevance of Death: The document clarifies that the death of one of the individuals can be a relevant factor in determining the spousal relationship.
• Effect of Adoption: There's a segment that delves into how adoption affects the determination of familial relationships, especially concerning succession. It specifically states how adoption impacts the entitlement to the estate of both pre-adoption parents and adopted children.
• Construction of Instruments: This section appears to discuss how certain provisions of the Act can be overridden or modified by specific instruments or agreements.
• Specific Rules for Nisg̱a'a Citizens and Treaty First Nation Members: The document has multiple sections that seem to address rules and regulations related to estates, wills, and property rights specifically for Nisg̱a'a citizens and members of treaty first nations. These sections provide guidelines on the notification process, participation in judicial proceedings, and requirements for applications related to estates.
• Service on Nisg̱a'a Lisims Government or Treaty First Nation: This section emphasises the importance of serving necessary documents to the appropriate governing body when initiating court proceedings related to wills of Nisg̱a'a citizens or treaty first nation members.
• Disposal of Land in Treaty Lands: The document provides rules regarding the disposal of land located within treaty territories, especially post-death. It emphasises the need for notifying the respective governing bodies and getting their approval.
• Restrictions on Acquiring Lands: The document outlines specific restrictions on the acquisition of Nisg̱a'a Lands or treaty territories.

3. When a Person Dies Without a Will

It's a scenario no one likes to think about, but what happens if someone passes away without a will? This section addresses this very situation, outlining how an estate is managed and distributed in the absence of a will.

Distribution of the Estate when there is no will – key takes:

• If a person dies leaving a spouse but no descendants: The intestate estate must be distributed to the spouse.
• If a person dies leaving both a spouse and descendants:

• Definitions provided for terms used in this section:

• "household furnishings": Items typically associated with a spousal home.
• "net value of an intestate estate": Fair market value after various deductions.

• The spouse receives the household furnishings.
• The spouse also gets a preferential share of the estate based on certain conditions:

• If all descendants are common to both the deceased and the spouse, the share is $300,000 (or a greater amount if prescribed).
• If not all descendants are common to both, the share is $150,000 (or a greater amount if prescribed).

• If the estate's net value is less than the spouse's preferential share, the entire estate goes to the spouse.
• If the estate's net value is equal to or greater than the spouse's share:

• The spouse receives their preferential share.
• The residue of the estate is distributed: half to the spouse and the remaining half among the descendants.

• When there's no spouse or descendants:

• The estate is distributed to relatives based on specific degrees of kinship.
• Beyond the fifth degree of relationship, individuals are considered to have predeceased the deceased.
• However, descendants beyond the fifth degree can still inherit.
• Degrees of relationship are computed based on the common ancestor, and half-kinship relatives inherit equally with whole kinship.

• Distribution to descendants:

• The property is divided into equal shares equivalent to the number of surviving descendants and deceased descendants with surviving descendants.
• Each surviving member of the closest generation with surviving members receives one share.
• The share for each deceased member is divided among their descendants.

• Partial intestacy: Applies to parts of an estate that are neither gifted nor disposed of by a will.

4. Wills

A significant portion of the Act, this section delves deep into the world of wills. From the creation and validity of a will to its interpretation, this section is a comprehensive guide to everything one needs to know about drafting and executing wills.

Here are some key takeaways from the Part 4 – Wills:

Division 1 — Making a Will:

• Definitions related to the making of a will are provided.
• "Communicate" is defined as using audiovisual communication technology, including assistive technology for those who are hearing or visually impaired.
• "Electronic" refers to something created, recorded, transmitted, or stored in a digital or other intangible form by electronic means.

Division 2 — Legal Effect of a Will:

• A person can gift property by will, which they are legally or equitably entitled to at the time of their death.
• The property can be acquired before, on, or after the date the will is made.

Division 3 — Abrogation of Common Law Rules:

• Certain common law presumptions related to will-making and the distribution of assets have been abrogated.
• For instance, the presumption that a gift given during one's lifetime to a child is an advancement meant to revoke a gift in the will in favour of the child is done away with.

Division 4 — Variation of Wills:

• The will-maker's spouse or children can apply to the court to vary the will if they believe the will does not make an adequate provision for their proper maintenance and support.
• Proceedings related to this must commence within 180 days from the date the representation grant is issued in British Columbia.

Division 7 — Registration of Notice of Will:

• If a person makes a will, a notice of the will can be filed with the registrar general.
• If a will is revoked, a notice of revocation can be filed with the registrar general.

Division 8 — Conflict of Laws:

• Interpretation guidelines are provided for references to laws from places other than British Columbia.
• The law of a place other than British Columbia refers only to the internal law of that place, excluding its conflict of laws rules.

Division 9 — Adoption of Convention Providing a Uniform Law on the Form of an International Will:

• The "Convention Providing a Uniform Law on the Form of an International Will" is adopted and is in force in British Columbia.

5. Benefit Plans

Beyond just physical assets, many individuals have benefit plans, such as insurance policies or pensions. This section details the rules surrounding these plans, ensuring beneficiaries receive what they are entitled to.

Key takes of Part 5:

Application of Part:

• This section establishes the applicability of the rules within "Part 5 — Benefit Plans."
• It applies whether or not a benefit plan allows a person the right to make a designation.
• Any benefit plan provision conflicting with this Part will be overridden by this Part unless authorised by another enactment of British Columbia or Canada.
• This Part doesn't apply to specific insurance contracts.
• If there's a conflict with another enactment of British Columbia or Canada, the other enactment takes precedence.

Designated Beneficiaries:

• Participants can designate individuals as beneficiaries to whom benefits are payable.
• Designations can be changed or revoked unless they are irrevocable.
• Designations and their alterations/revocations must be in writing, signed, and should not conflict with irrevocable designations.
• Designations can be made in a will but must explicitly relate to a benefit plan.

Irrevocable Designations:

• Certain designations are irrevocable, meaning they cannot be changed without the beneficiary's consent.

Payment of Benefits:

• Benefits are payable to designated beneficiaries or a trustee upon a participant's death.
• If a beneficiary predeceases the participant without specific provisions, their share is payable.

Benefit Plan Administrator:

• If a benefit plan administrator transfers a benefit in accordance with the plan, they are free from liability related to that benefit.

Benefit not Part of Estate:

• Benefits payable to a designated beneficiary or trustee don't form part of the participant's estate and are not subject to claims from the participant's creditors.

Designated Beneficiaries in a Will:

• Designations in a will can be changed or revoked by a subsequent designation not in a will.
• Revocation in a will of a designation revokes an external designation unless it's irrevocable.
• Revoking a will also revokes any designation within it.
• A designation or its revocation in a purported will remains valid even if the will itself is invalid.
• Revival of a will by codicil doesn't revive a revoked designation unless specified.

Effective Date of Designation and Revocation:

• Unless irrevocable, designations or their revocations in a will are effective from the time the will is made.

6. Administration of Estates

Administering an estate is no small task. This section delineates the legal procedures and regulations surrounding the administration of estates in British Columbia. Key areas covered include the applicability of this part to personal representatives or others acting under a will or representation grant, the vesting of property upon death, and the powers and responsibilities of the Public Guardian and Trustee. The document also outlines procedures for handling the deceased's safety deposit box and grants the Lieutenant Governor in Council the authority to make further regulations. It's crucial to understand that this is a simplified overview and the actual document is far more detailed, covering various aspects and nuances of estate administration in depth.

7. Transitional Provisions, Repeals, and Consequential and Related Amendments

Laws evolve over time, and the "Wills, Estates and Succession Act" acknowledges this reality. This section focuses on the transition from old regulations to new ones, repeals of outdated provisions, and any related amendments. It ensures that the Act remains current and in line with modern needs.

Conclusion

Understanding the intricacies of the "Wills, Estates and Succession Act" of British Columbia is crucial for anyone navigating the complexities of estate planning, inheritance, and succession. While legal documents can often seem impenetrable, breaking them down piece by piece reveals the thoughtful structure and clarity with which they are crafted. From defining key terms to outlining foundational principles, the Act serves as a comprehensive guide, ensuring that the wishes of the deceased are honoured while safeguarding the rights of survivors and beneficiaries.

In our rapidly changing world, the definition of relationships, property, and inheritance is continually evolving. It's comforting to know that there are robust legal frameworks like this Act in place, designed to provide clarity and fairness in times of grief and uncertainty. Whether you're drafting a will, administering an estate, or simply seeking to understand the legal landscape, knowledge is power. And with this guide, we hope to have made the "Wills, Estates and Succession Act" a bit more accessible to everyone.