Sunday, April 07, 2013

Wills, Estates and Succession Act Transition Provisions

The Government of British Columbia has recently enacted a regulation bringing most sections of the new Wills, Estates and Succession Act into force on March 31, 2014. New legislation can lead to confusion over what law governs when. For example, may a court apply section 59 to rectify a will made before March 31, 2014, perhaps a will made 40 years ago? If a person dies without a will before March 31, 2014, but an application is made for letters of administration after that date, will the new provisions giving a spouse a larger share when there are children apply, or will the old provisions apply.

The Wills, Estates and Succession Act has provisions in sections 185 through 190 setting out the rules for transition. In most cases, the key date is the date of death. Most of the provisions in the Act will apply if the person died on or after March 31, 2014, even if the deceased had made his or her will many years before then.

So, for example, the court can rectify a will under section 59 as long as the will was made by a person who dies on or after March 31, 2014. The new intestacy provisions for those who die without a will only apply to people who die on or after the legislation comes into force. The old intestacy provisions of the Estate Administration Act apply to deaths before then.

There are exceptions to the rule that the date of death determines whether the Wills, Estates and Succession Act applies. One of the exceptions is that the provision in the old Wills Act that says a will is revoked by a marriage (unless the will was made in contemplation of marriage) will apply if the will-maker marries before March 31, 2014 even if he or she dies after that date. The new legislation does not have a similar provision revoking a will on marriage.

This is because Section 186 sets out exceptions in respect of the law relating to the validity of wills, the relevant one being subsection (3):

186  (1) Subject to sections 193 and 194, Part 4 [Wills] applies to a will, whenever executed, if the will-maker dies on or after the date on which Part 4 comes into force.
(2) Subsection (1) does not invalidate a will validly made before the date on which Part 4 comes into force.
(3) Subsection (1) does not revive a will validly revoked before the date on which Part 4 comes into force.

A marriage occurring before March 31, 2014 would revoke the will before the Wills Act is repealed and replaced by the Wills, Estates and Succession Act, and section 186 (3) says that a will revoked before the new legislation comes into effect is not revived.

Another exception is a very specific section dealing with the interpretation of a gift of land or tangible personal property in a will that is subject to a purchase money security interest. Section 47 says that unless you signify a contrary intention in your will if you give land or tangible personal property that is encumbered by a purchase money security interest to a beneficiary, that asset is charged with the debt. For example, if you finance the purchase of your car, and the lender secures the debt against the car, if you leave the car to say your niece in your will, as between your niece and the other beneficiaries of your estate, it is your niece who is responsible for paying the loan. You may, however, say in your will that you want your executors to pay the loan off out of your estate in which case you will have shown a contrary intention.

Section 47 will only apply to wills made on or after March 31, 2014, regardless of the date of the will-makers death.

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