The Brave New World of the WESA

And its effect on your practice

The Brave New World of the WESA

The proclamation on March 31, 2014 of the Wills Estates and Succession Act (the “WESA”), along with Part 25 of the Supreme Court Civil Rules, has brought significant changes to estate planning and administration. The new court forms, not to mention the myriad of new substantive law provisions in the WESA, create considerable uncertainty in the practice. It is therefore crucial that lawyers reconsider the standard advice they give to clients. This article outlines two discrete issues in advising a personal representative (PR) on the proper steps to administer an estate.

First, the definition of a “record” in s. 58 of the WESA (which may represent testamentary intentions) requires something more than a search through the personal papers of the will-maker. The PR must now also review emails, documents and perhaps even videos saved in the deceased’s electronic devices in order to swear (as required in the court forms) that “a diligent search for a testamentary document of the deceased has been made in each place that could reasonably be considered to be a place where a testamentary document may be found.”

This search is, of course, only the first step. If the PR finds a “record” which might represent a “testamentary instrument,” what then? Is it the PR’s duty to bring this document to the court’s attention (as was done in Estate of Young, 2015 BCSC 182)? Can the PR reply upon a lawyer’s opinion on the efficacy of the document (and is a lawyer prepared to give that opinion, absent case law on the subject)? There are no easy answers, and much will depend upon the nature and potential effect of the record. Whilst it may be possible in some circumstances to reach an agreement amongst those beneficiaries affected, in others a court application with its attendant costs will be required.

Second, problems may arise where the will-maker’s marital status is uncertain. The law of giving notice to a spouse has not changed, but PRs must now consider s. 2 of the WESA. The test for a “spouse” has been somewhat simplified: marriage, or a “marriage-like relationship for at least two years” prior to death. However, the definition of ceasing to be a spouse is trickier. For married spouses, it is when “an event occurs that causes an interest in family property, as defined in Part 5 [Property Division] of the Family Law Act (FLA), to arise.” For unmarried spouses, it is when “one or both persons terminate the relationship.”

The PR must make the appropriate inquiries, and where there is doubt, consider whether his or her duties to the beneficiaries named in the will conflict with those owed to a putative spouse. Moreover, where the spouse is separated, that spouse will have rights under the FLA, which may include an interest in the deceased’s property. This in turn will affect the valuation of the deceased’s interest in the property.

There are many other pitfalls in the new regime, and it will be several years before estates and wills lawyers regain the comfort level they previously may have enjoyed. Until then, best practices must be carefully reviewed and, in many situations, updated.