Legal information provided by Morgyn Chandler, Partner, Helpforme Personal Legal Services. The following is the first of a three-part series of articles on Wills & Estate Planning and Estate Litigation to provide you with an understanding of how inheritance is handled under the law in B.C. We are proud to have served the Cowichan Valley community for 20 years.
The Wills, Estates and Succession Act of British Columbia (known by the acronym WESA) is a provincial statute that governs the law of inheritance in B.C. This means that any will that you create must be in compliance with WESA.
Basic Requirements
There are a number of technical requirements to execute a valid will in B.C. These include the following:
• Your will must be in writing.
• You must sign your will at the end of it.
• When you sign your will, you must sign it in front of two witnesses at the same time.
While it is not necessary under the law to date your will, it is advisable to do so, particularly if you have drafted more than one version of your will over the course of your lifetime. It will eliminate any confusion regarding which of your wills is the most recent. There are many other considerations when drafting a will and the abbreviated information provided in this article is by no means all-inclusive. It is in your best interests to consult with an estate planning lawyer to ensure your will is valid and legal.
Validity of a Will
In general, to make a valid will, a will-maker must be:
• At least 16 years of age;
• Have testamentary capacity;
• Intend to make a will;
• Comply with the formalities in WESA; and
• You need to agree with the contents of the will at the time you make it. If someone misleads you or puts pressure on you, the will is not valid.
Testamentary Capacity
A will-maker must be of sound enough mind (capacity) to understand:
• The nature of the act of making a will and its effects;
• The extent of the property he or she is disposing; and
• To whom they are giving the property.
This illustrates why it is important to organize your estate before you fall ill: you do not want to reach a point in sickness or mental decline where you are unable to explain your wishes to a lawyer.
Intestacy
If you die without a will, in legal terminology — you have died “intestate.” According to the most recent Angus Reid poll, 51 per cent of Canadians do not have a will. Many people don’t realize what happens when you die without a will. It may surprise you to know that in cases of intestacy, the Wills, Estates and Succession Act of British Columbia outlines a strict set of rules dictating what will happen to your assets.
When the law determines how your property is distributed upon your death, it includes any bank accounts, securities, real estate, and other assets a person owned at the time of their death. For example, if there is a surviving spouse and children, the law sets out what portions go to whom. If there is no surviving family, only friends, the decedent’s estate could, in theory, go to the government.
If you die intestate, your wishes will not come into play, at all, and uncertainty among your relatives and heirs can add more stress in an already stressful and emotionally fraught situation. These situations are easily avoided by proper estate planning.
Out-of-country Assets
The Court of British Columbia will only deal with the assets in Canada. If you own assets elsewhere, it is important to consult with an estate planning lawyer as these may need to be placed in a second will, or be disposed of otherwise to avoid tax implications.
A word of caution: You should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or consult a lawyer.
Next issue: Inheritance under B.C. Law, Part II - Children & Spouses