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Losing a loved one is hard enough. Don't lose your share of the estate too.

  • What is the BC Wills and Estate Succession Act (WESA)?

  • What constitutes a valid will?

  • What is testamentary capacity?

  • What are the principles of determining inheritance rights?

  • Who pays legal fees on a contested will?

What is the BC Wills and Estate Succession Act (WESA)?

The BC Wills and Estate Succession Act (WESA) maintains the rights for spouses and children to vary unfair Wills, it simplifies the estate distribution process for appointed executors, committees and lawyers and also provides increased clarity for individuals who put there last wishes in writing.

Other features of the BC WESA include:

  • Clarifies the process of inheritance when a person dies without leaving a Will;
  • Makes the process easier for a person to transfer the title of their spousal home when their spouse dies;
  • Clearly outlines the sequence in which to look for heirs to a person’s estate;
  • Provides the courts with more latitude to ensure a deceased person’s last wishes will be respected;
  • Clarifies obligations relating to property inheritance in the context of Nisga’a and Treaty First Nation lands;
  • Lowers the minimum age at which a person can make a Will from 19 to 16 years old;
  • Contains a brand new onus clause for undue influence;
  • Takes into account the impact of the new Family Law Act on spousal will variation claims.

Request a consult with a MacLean Estate Litigation lawyer.

What constitutes a valid will?

A valid Will must be in writing and be signed at the end by the will-maker. The will-maker must sign the Will in the presence of two or more witnesses that are present at the same time. Two or more of the attesting witnesses must subscribe the Will in the presence of the will-maker. The will-maker must be at least 16 years old and the witnesses must be at least 19 years old.

What is testamentary capacity?

For a Will to be valid, the person making the Will must be of sound mind, memory and understanding. This is legally known as having a “testamentary capacity” which means that the person executing the Will must:

  • Understand that the Will has the effect of distributing his property at the time of his death;
  • Be capable of remembering generally what property is subject to distribution by Will;
  • Be capable of remembering those persons related to him; and
  • Be capable of expressing an intelligent scheme of distribution.

If the testamentary capacity of a person is in question, this may open up a Will to be challenged. Some indications that testamentary capacity might be in issue are the following:

  • Large departures from an earlier testamentary document;
  • Suspicious circumstances;
  • The possibility of undue influence;
  • An illness or mental illness present at the time the Will was prepared;
  • Knowledge that the Will-maker was on medications or drugs that could have altered their mental state;
  • A Will-maker who rushed into preparing the Will on an urgent basis.

The testamentary capacity of an individual can be both a delicate and complicated issue. The wills and estate litigation lawyers of MacLean Law are available to answer any question regarding testamentary capacity.

What are the principles of determining inheritance rights?

As per the Wills and Estate Act:

  • When a person is a spouse;
  • The effect of adoption;
  • The requirement to survive at least five days;
  • The implications of a posthumous birth;
  • The rights of posthumously conceived children.

Other fundamental rules are also addressed, including:

  • The requirements for a contrary intention in a will to be given effect;
  • The admissibility of external evidence to interpret a will;
  • What happens if two people who inherit from each other die simultaneously.

Finally, the implications of Nisga’a and First Nations’ Final Agreements on succession law and, in particular, their right to control the disposition of treaty lands and cultural property are addressed.

Who pays legal fees on a contested will?

The expense involved in an estate dispute is often paid from the estate and can significantly erode the amount remaining for the beneficiaries. However, in cases where the party that loses the variation action, the estate doesn’t pay, the losing party will have to pay the legal costs of the winning party. It’s important to note that depending on the circumstances, the court will have discretion to depart from that rule and grant costs out of the estate.

If you and your loved ones require estate litigation guidance, contact the experienced lawyers at MacLean Law.

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I’m in good hands. Great, professional and friendly staff. Thank you Nicholas Davies.

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Azita Sedaghat