Issue link: http://digital.canadawide.com/i/398704
Ask an Advisor Is Your Will Still Effective? Recent changes to B.C.'s estate laws By Genevieve TAylor, Legacy Tax + TrusT Lawyers As of March 31, 2014, the new Wills, Estates and Succession Act (WESA) has made some important changes that can impact whether a will-maker's wishes are carried out as intended. Wills that were valid before the change are still valid now – although possibly with slightly different effect. While there are many changes contained in WESA, two in particular are worth not- ing: 1) changes in spousal status and the effect of separation on gifts under a will, and 2) a significant change to potentially recognize as wills documents that are not formally wills. Spousal status under WESA is based on either legal marriage or common law relationship (both heterosexual and same-sex relation- ships). All such relationships have virtually the same treatment under WESA. In keeping with this, under WESA marriage no longer revokes a will (although wills that were previously revoked by marriage prior to March 31, 2014, remain revoked). Under WESA, gifts and appoint- ments, such as the appointment of the executor and trustee, made to a spouse under a will are revoked immediately upon proved separation of the spouses, regardless of whether there is any later reconciliation. A separated spouse may have rights by virtue of the Family Law Act or its predecessor, the Family Relations Act, but no longer under the wills variation provisions of WESA or the intestacy rules where there is no will. is is a significant change from the prior law. Another significant change under WESA is that the court can now recognize as wills documents or records that do not meet the formalities normally required for wills. Previously, such formalities were strictly enforced. Now, a record of wishes – even if unwitnessed and possibly unsigned – might be found by the court to be representative of a per- son's testamentary wishes and accordingly made operative as a will, an amendment or revocation of a will. Such a record need not be a paper document, but could also be electronic (such as an email). Notably, such documents are not automatically valid – a court hearing would be required. e extent to which the court will permit such documents to have legal effect has yet to be determined in British Columbia. If you're looking to change or revoke your will, it's best to seek professional advice. Handwritten notes on your will or informal documents are not recommended as they can lead to confusion as to their effect, and potentially litigation. Because informal documents may now impact the distribution of an estate, an executor who is charged with the obligation to search for a will of a deceased person must search in more places than before (including potentially on computer hard drives and smartphones). Under the old law, if a will was improperly witnessed, the executor could disregard it; now, the executor must bring forward all records purporting to have a bearing on the disposition of the estate and a court must determine if they are, in fact, a will. Over time, case law will develop to clarify the scope of such searches and what may con- stitute a will. To ensure that your existing estate plan works as intended under WESA, you may want to review it with your lawyer or notary. LASTING LEGACIES We are honoured to acknowledge donors who include Vancouver Foundation as a beneficiary of their estate, RRIF, RRSP or life insurance policy. In 2013, these individuals left a lasting legacy for the community through Vancouver Foundation. WITH GREAT APPRECIATION, WE REMEMBER: John D. Fitz-Gerald Danny Gaw Jean T. Hyatt George Lach Robert McGregor Murray Marjory Merceline Pigott Dorothy Ryan Joan W. Taylor Susan J. Whittaker . . . and one donor who wished to remain anonymous What will the future bring? Take this opportunity to make a real difference in your community – both today and in the future. Call Calvin at 604.629.5357 or donate online at vancouverfoundation.ca/incentive. *See website for details. Ensure your giving makes a lasting difference with our $10,000 gift incentive. *