Wills Variation in British Columbia
The Wills, Estates and Succession Act (“WESA“) (formerly the Wills Variation Act, R.S.B.C. 1996, c. 490) is an important piece of legislation that gives the courts the power to alter a will in certain situations where they feel that a child or spouse has not been treated fairly and justice must be done. The Act may help you challenge a will if you have been disinherited. The core of the power is found in Section 60:
“Despite any law or enactment to the contrary, if a will-maker dies leaving a will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the will-maker’s spouse or children, the court may, in an action by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the will-maker’s estate for the spouse or children.”
Factors that may be considered by courts in determining whether ‘adequate provision’ has been made include, but are not limited to:
- The station in life of the child or spouse
- The financial need of the child or spouse
- A consideration of the future needs of the child or spouse
- Whether there are restrictive conditions in the will of the deceased that preclude adequate provision for the child or spouse
- Whether the child or spouse is being maintained by the state
Note that the courts have confirmed that a testator can disinherit a child for good cause, particularly when a WESA memorandum is prepared along with the will setting out the testator’s reasons.
Also note that in addition to legally married persons, ‘spouse’ also includes a person who is living with another person in a marriage-like relationship, including persons of the same gender, and has lived in that relationship for at least 2 years.
A person ceases to be a spouse, in the case of legally married persons, when they live separate and apart for at least 2 years, and one or both persons have the intention formed before or during separation to live separate and apart permanently, or, an event occurs that causes an interest to arise in family property under the Family Law Act of BC. A person ceases to be a spouse, in the case of a marriage-like relationship, when one or both persons terminate the relationship.
Whether the reasons constitute good cause is a matter that may require legal consultation with a practicing lawyer.
The court action to challenge a will under WESA must be commenced within 180 days from the date of the grant of probate.
WESA does not apply when a person dies without leaving a will.
Wills and estates of Status-Indians are governed by the Indian Act.
A will can be challenged under the doctrine of undue influence, where it is alleged that some or all of the will was made due to force, fraud, fear, or undue influence on the will-maker by another person.
Under WESA, when a relationship existed between the will-maker and another person, often a caregiver, “where the potential for dependence or domination of the will-maker was present”, a gift made to that person is now presumed invalid. The would-be beneficiary has the burden of disproving he or she exercised undue influence over the will-maker.
Challenging the Will
There are two common ways of challenging the validity of a will, through the claim that the testator lacked testamentary capacity when the will was made, and through the claim that the will was made under suspicious circumstances.
- Lack of testamentary capacity: a claimant can state that there was not sufficient testamentary capacity at the time the will was entered into:
- Testamentary capacity can be summarized as properly understanding the act and implications of making the will, free of mental disorder and under genuine free choice.
- If the will is rational on its face, it is presumed that the testator was capable at the time when it was made. It must be proved that there was incapacity on the balance of probabilities – a civil standard of proof.
- An individual that is under 16 years old can only make a valid will if he or she is on active service in the armed forces
- Suspicious circumstances: where a will is prepared under circumstances that raise a well grounded suspicion that it does not express the mind of the testator.
- The propounders of the will face a burden of proof to remove the suspicion by proving knowledge, approval and testamentary capacity.
Removal of a Trustee
When is it necessary?
Trustees can be removed if they do not do their job. They can be removed under WESA, the Trustee Act and the inherent jurisdiction of the Supreme Court of British Columbia.
What are the duties/obligations of an Executor/Trustee?
The basic duties (but not limited to) of the executor are to:
- collect in the assets of the estate;
- deal with creditors and claims, including tax issues;
- administer the estate;
- Investment Powers – the ability of the executor to invest estate assets is governed by legislation unless the will has express powers or limitations in that regard. Essentially the test is whether the investment is that of a prudent investor.
- distribute the estate assets to the beneficiaries in accordance with will.
- An executor has a fiduciary obligation to the beneficiaries to distribute the estate assets to the beneficiaries. However, the beneficiaries cannot compel the executor to distribute any portion of the estate until after one year from the date of death. This is known as the “executor’s year”, and is intended to provide the executor with time to do her job without the beneficiaries pressuring her for their inheritance.
Obligations of an Executor/Trustee:
- No Self-Dealing
- Keep accounts and Vouchers
- Passing the Accounts
- Remuneration of the Executor
STATUTE: Laws governing duties of personal representatives and trustees:
Section 142 (1) WESA
A personal representative has the same authority over the estate in respect to which the personal representative is appointed as the deceased person would have if living….
Section 142 (2) WESA
A personal representative must exercise authority to administer and distribute the estate in respect to which the personal representative is appointed, account to beneficiaries, creditors and others to whom the personal representative has at law a duty to account, and perform any other duties imposed on the personal representative by the will of the deceased person or by law.
Section 15.2 Trustee Act
In investing trust property, a trustee must exercise the care, skill, diligence and judgment that a prudent investor would exercise in making investments.