Category: WESA Procedures

Ian Mulgrew: WESA, new wills and estates law brings sweeping change to B.C. Aims to provide greater certainty and simplify process for those distributing an estate

The Wills, Estates and Succession Act (WESA) passed by the B.C. legislature on Sept. 24, 2009 finally comes into force in the New Year and it’s a sweeping change.

After March 31, the new law brings together and updates various statutes with the twin aims of providing greater certainty for individuals who leave a will and simplifying the process for those responsible for distributing an estate.

Among its benefits, the government says the act clarifies the process of inheritance when a person dies without leaving a will; makes the process easier for a spouse to transfer the jointly held title of the family home when a partner dies; clearly outlines the sequence in which to look for heirs; provides the courts with more latitude to ensure the last wishes of the dead are respected; clarifies obligations relating to property inheritance in the context of Nisga’a and Treaty First Nation lands; and lowers the minimum age at which a person can make a will from 19 to 16 years old.

New probate rules also come into effect with the act, which was the product years ago of a long public process that included the participation of the Supreme Court and the B.C. Law Institute.

The hope is these rules will ensure consistency for probate applicants and streamline court processes to provide more timely service.

Still, there are nervous nellies.

A recent meeting to explain the changes to some 300 lawyers produced as much anxiety as it eased: Solicitors wrung their hands with concern; litigators rubbed theirs at the prospect of more, not fewer lawsuits as a result of the changes.

Section 58, for instance, introduces a radically significant idea about what can be considered a will, saying: “the court may, as the circumstances require, order that a record or document, or writing or marking on a will or document be fully effective as though it had been made a) as the will or part of the will of the deceased person, b) as a revocation, alteration or revival of the will of the deceased person, or c) as the testamentary intention of the deceased person.”

Vancouver lawyer Trevor Todd, who runs staging-disinherited-staging.kinsta.cloud and participated in the development of the law, says this could create awkward situations.

“Until WESA comes into force,” Todd said, “the court has little power to cure a failure to comply with technical requirements in executing a will. WESA allows the court to look to another ‘record, document or writing, or marking on a will’ to help determine the will-maker’s true intentions, and to give effect to them. Accordingly, the court will have the power to order that a written or electronic record stand as a person’s last will.”

He said that could include an unsigned or improperly executed will, lawyer’s notes from discussions with the person, a copy of a will stored on the person’s computer or electronic tablet, an email sent from the person setting out his or her testamentary intentions.

It will become possible for emails to be held out as the true intention of the will, he said, or for a separation agreement to surface that may be held out to be a statement of the spouse’s testamentary intentions and may be declared by the court to be a valid alteration or an actual will

Rectification also may be ordered if the court determines that an otherwise valid will does not carry out the will-maker’s intentions because of an accidental slip or omission, a misunderstanding of the will-maker’s instructions by the lawyer, notary or another person involved in the preparation of the will, or a failure to carry out the will-maker’s instructions in drafting the will.

Those increased powers vested in the court are probably the most controversial changes.

“The court’s expanded powers will likely lead to increased litigation, such as by disappointed heirs coming forward with email or other writings of the deceased to demonstrate that the will does not show the deceased’s ‘true intentions,’” Todd said.

In terms of other changes, right now, unless a will states you are specifically contemplating marriage to a certain person, marrying after the execution of a will revokes it. WESA removes this stipulation.

“It had been thought that this requirement may not be well-known by the general public, and thus could accidentally frustrate the intentions of the will-maker,” Todd said.

“As well, given the rising number of common law marriages, this requirement would apply inconsistently to formally married and common law couples.”

Todd added that he thought the new law brought big improvement by reversing the onus in cases where allegations of undue influence arose so that it falls on those who received the gift.

If the validity of a will is challenged on the ground of undue influence at the moment, the onus is on the person making the allegation to prove it.

Initially, the law proposed removing the right of an adult independent child to contest a parent’s estate because the child was not adequately provided for in the will.

Todd was among those who fought that particular proposal and prevailed so that the century-old provision was not changed.

In general, WESA gives the courts much greater leeway to give effect to the intentions of the will-maker — whether that increases or reduces certainty, we’ll have to wait and see how the judges exercise their new authority.

 

 

Section 130 of WESA is a new section that provides for a priority of the various persons who may be entitled to apply for a grant of administration where the deceased died without a will (intestate)

The spouse has priority but may nominate another third party in his or her place, be it a Trust company or another person.

If a child of the deceased applies then the consent of the majority of the other children is necessary.

Section 130 states:

Priority among applicants—intestate estate

130 If a person dies without a will, the court may grant administration of the deceased person’s estate to one or more of the following persons in the following order of priority:

(a)            the spouse of the deceased person or a person nominated by the spouse;

(b)       a child of the deceased person having the consent of a majority of the children of the deceased person;

(c)        a person nominated by a child of the deceased person if that person has the consent of a majority of the deceased person’s children;

(d)       a child of the deceased person not having the consent of a majority of the deceased person’s children;

(e)       an intestate successor other than the spouse or child of the deceased person, having the consent of the intestate successors representing a majority in interest of the estate, including the intestate successor who applies for a grant of administration;

(f)        an intestate successor other than the spouse or child of the deceased person, not having the consent of the intestate successors representing a majority in interest of the estate, including the intestate successor who applies for a grant of administration;

(g)            any other person the court considers appropriate to appoint, including, without limitation, the Public Guardian and Trustee, subject to the Public Guardian and Trustee’s consent.

Prior to this section under the Estate Administration act, no clear priority of applicants existed, and the court had discretion to appoint one r more net of kin.

 

S 131 states that where there is a will but no executor named, or the executor has renounced or is unable or unwilling to act, s 131 also sets out a priority of who may apply:

1) a beneficiary who applies having the consent of the beneficiaries representing the majority interests of the estate, including the applicant;

2) a beneficiary who applies not having the consent of the beneficiaries representing the majority interest of the estate , including the applicant

 

S 132 gives the Court an overriding discretion to appoint any person including the Public Guardian where the Court considers there are “special circumstances” after considering the priority of applicants under S 131 or S 132.

This provision is similar to the previous S 7 of the Estate Administration act, now repealed.

I was recently asked to write an article on the effect of WESA on the Wills Variation act for the Canadian Bar Association.

There in fact are very few changes under WESA relating to the WVA, other than what the original definition of spouse had been under the Wills Variation act

I wrote my article and then had to withdraw it at the last moment as the Government introduced legislation only a few days before the introduction of WESA on April 1, significantly changing the definition of Spouse.

 

The conflict arises between the definitions of spouse under the Family Law act, and that of spouse under the Wills Variation act.

Anna Laing, a senior lawyer who does both Family and Estate litigation posed the following question to senior practitioners today. I admittedly do not know the clear answer:

a)         whether the surviving spouse can commence a Family Law Act proceeding against the estate of the deceased spouse or simply has a trust claim against the deceased spouse’s estate for his or her share of the family property.  I surmise your answer might be the former based on this statement:

Essentially, the court will have to determine WHAT the deceased actually owned at the date of death, given that the separated spouse had an interest in spousal property.  Upon the determination of the spouse’s share of family property, the spouse would have a claim on the estate like any other debtor and would have to be paid (or consent) prior to any distribution of the estate.

In that case, is it your view that the surviving spouse can access the reapportionment provisions of the FLA?  Can the spouse access s. 96, which allows a spouse to make a claim against excluded property, even though the spouse does not acquire an undivided one-half interest in that property upon separation?

 

b)         what happens in the case of a surviving spouse where the deceased spouse died owning a lot of property that happened to all qualify as excluded property.  Put in concrete terms, when spouses A and B marry, spouse A has $20,000,000 in assets.  She supports the couple lavishly during their marriage but when she leaves Spouse B after 12 years of marriage, her assets are worth $17,000,000 and are excluded property.    She dies shortly after separation before Spouse B has commenced an FLA proceeding but after making a will that disinherits him.  Had she lived, she would likely have a significant support obligation to Spouse B.  Under the Wills Variation Act, Spouse A would likely have at least a moral obligation to have made some provision for Spouse B.  It seems to me that under the FLA and WESA as currently constituted, Spouse B gets nothing.  That does not seem right.

 

 

 

There are so many new terms used in both the WESA Act and its Probate Rules ( 25-1) .

Perhaps more importantly, the definitions used in both the Act and the Rules often give rights and powers in and to them selves, such as the rules states who constitutes a party in respect of proceedings under the Rules of Part 25, to the extent that parties may now include persons who previously would not have been proper parties in non -estate proceedings.

RULE 25-1— DEFINITIONS

Definitions

(I) In this Part:

‘affidavit of assets and liabilities for estate grant” means an affidavit referred to in Rule 25-3(2)(g);

“affidavit of assets and liabilities for resealing” means an affidavit referred to in Rule 25-6(2)

“alternate executor” means a person who, under the terms of a will, is to become an executor if the
person named in the will as executor is unable or unwilling to act or continue to act in that
capacity;

“authorization to obtain estate information” means an authorization to obtain estate information
issued under Rule 25-4(1)(a);

“authorization to obtain resealing information” means an authorization to obtain resealing
information issued under Rule 25-7( I )(a);

“citor” means a person who serves a citation under Rule 25-11(1);

“deliver”, in relation to a person, means provide to the person by
(a) personal delivery,
(b) ordinary mail to the person’s residential or postal address, or
(c) e-mail, fax or other electronic means to the address provided by the person for that purpose;

“disputant” means a person who files a notice of dispute under Rule 25-10( I); “estate grant” means

(a) a grant of probate, whether the grant is made for general, special or limited purposes,
(b) a grant of administration, whether the grant is made for general, special or limited purposes, or
(c) an ancillary grant of probate or administration;

“executor” means

(a) a person named in a will as an executor, or
(b) if 2 or more persons are named in a will as an executor, each of those co-executors, unless that person has renounced executorship;

“renounce executorship” has the meaning set out in subrule (4) of this rule;

“solemn form” has the meaning set out in subrule (5) of this rule;

“submission for estate grant” means a submission for estate grant in Form P2;

“submission for resealing” means a submission for resealing in Form P2I;

“testamentary document” means a document that does one or both of the following:

(a) makes or purports to make a testamentary disposition other than
(i) a designation under Part 5 of the Wills, Estates and Succession Act, or (ii) a designation of a beneficiary under Part 3 or 4 of the Insurance Act;
(b) appoints or purports to appoint an executor of the estate of the maker of the
document,and, without limiting this, includes a will;

“wills notice” means a notice filed under section 73 of the Wills, Estates and Succession Act with the chief executive officer under the Vital Statistics Act.

There is now a prescribed form for Renunciation of Executor and a definition of when delivery has been effectively given.

Definitions Under The Act

PART I —DEFINITIONS AND INTERPRETATION

I (I) In this Act: “beneficiary” means

(a) a person named in a will to receive all or part of an estate, or
(b) a person having a beneficial interest in a trust created by a will;
The definition of “beneficiary” is restricted to only those who benefit by a will or a trust in a will. See the definition of “designated beneficiary” for those who benefit under benefit plans. “benefit”, in relation to a benefit plan, means a benefit payable under a benefit plan on the death of a participant;

benefit plan” means

(a) any one or more of the following for the benefit of employees or former employees
of an employer, agents or former agents of an employer, the dependants of any of
them or a designated beneficiary:
(i) a pension plan or retirement plan;
(ii) a welfare fund or profit-sharing fund;
(iii) a trust, scheme, contract or arrangement,
(b) a fund, trust, scheme, contract or arrangement for the payment of an annuity for life or for a fixed or variable term,
(c) a retirement savings plan or retirement income fund registered under the Income Tax Act (Canada),
(d) a fund, trust, scheme, contract or arrangement described in the regulations made under this Act, or
(e) a tax-free savings account within the meaning of the Income Tax Act (Canada),
whether it was created before, on or after this definition comes into force;

chief executive officer” means the chief executive officer under the Vital Statistics Act,
“court” means the Supreme Court;

“declarant” means a person who makes a small estate declaration;*

“descendant” means all lineal descendants through all generations;

(The definition of “descendant” replaces the term “issue”. Section 81 of the Estate Administration Act, R.S.B.C 1996, c. 122 (the “EAA”) defined “issue” as including “all lineal descendants of the ancestor”. Neither term is defined in the Trustee Act, R.S.B.C 1996, c. 464.
“designated beneficiary” means a person to whom or for whose advantage a benefit is payable by a
designation; “designation” means the designation of a designated beneficiary in accordance with section 85)

[designated beneficiaries]; “estate” means the property of a deceased person; “foreign grant” means a grant of probate, including letters of verification issued in Quebec, or a grant of
administration or other document purporting to be of the same nature issued by a court outside
British Columbia; “foreign personal representative” means a personal representative to whom a foreign grant has been
made;

“gift” includes
(a) a beneficial devise or bequest, and
(b) an appointment affecting property other than the appointment of a person as executor of the will;

“instrument” includes a testamentary instrument and other legal documents, but does not include an instrument, other than a will, to which the Insurance Act applies;

“intestate” means a person who dies without a will;

“intestate estate” means the estate of a person who dies without a will;

“intestate successor” means a person who is entitled to receive all or part of an intestate estate;

“land” includes buildings and fixtures, and every right, title, interest, estate or claim to or in land;

“Nisga’a citizen” has the same meaning as in the Nisga’a Final Agreement;
“Nisga’a Final Agreement” has the same meaning as in the Nisga’a Final Agreement Act’,
“Nisga’a Lands” has the same meaning as in the Nisga’a Final Agreement;
“Nisga’a law” has the same meaning as in the Nisga’a Final Agreement;
“Nisga’a Lisims Government” has the same meaning as in the Nisga’a Final Agreement;
“Nisga’a Village Government” has the same meaning as in the Nisga’a Final Agreement;
“nominee” includes
(a) a committee acting under the Patients Property Act granted power over financial affairs,
(b) an attorney acting under an enduring power of attorney as described in section 8 [enduring power of attorney] of the Power of Attorney Act,*
(c) a representative acting under a representation agreement made under
(i) section 7( I )(b) [standard provisions] of the Representation Agreement Act, or (ii) section 9( I )(g) [other provisions] of the Representation Agreement Act; and
(d) a person appointed under section 51 (2) [mentally incompetent Indians] of the Indian
Act (Canada) or the Minister of Indian Affairs and Northern Development;

“personal property” means every kind of property other than land;

“property” means land and personal property;

“registrable charge” means a charge created by an order of the court under section 33(2) [retention of
spousal home] and made effective by registration in a land title office under section 34 [registrable
charges];

“representation grant” means

(a) the grant of probate of a will in British Columbia, whether made for general, special or limited purposes,
(b) the grant of administration of the estate of a deceased person in British Columbia, with or without will annexed, whether made for general, special or limited purposes,
(c) the reseating in British Columbia of a grant of probate of a will or a grant of administration of the estate of a deceased person,
(d) an ancillary grant of probate, or
(e) a small estate declaration filed with a registrar of the court under Division 2 [Small Estate Administration] of Part 6 [Administration of Estates]*

“security interest” means an interest in property that secures payment or performance of an
obligation;

“small estate” means an estate composed wholly of personal property of less than a prescribed value as of thedate of death;
*
“small estate declaration” means a statutory declaration made in the form as set out in the Supreme Court Civil Rules respecting a small estate;

Spousal Home

(a) a parcel of land, owned or owned in common by the deceased person and not leased
to another person, that
(i) is shown as a separate taxable parcel on a taxation roll for the current year
prepared under the Taxation (Rural Area) Act or on an assessment roll used
for the levying of taxes in a municipality, and (ii) has as improvements situated on it a building assessed and taxed in the
current year as an improvement, in which the deceased person and his or
her spouse were ordinarily resident,
(b) a share owned or owned in common by the deceased person in a corporation whose charter, as defined in section I (I) of the Business Corporations Act, provides that a building owned or operated by the corporation must be owned and operated exclusively for the benefit of shareholders in the corporation who are occupants of the building, if the value of the share is equivalent to the capital value of a suite owned by the corporation, in which suite the deceased person and his or her spouse were ordinarily resident and which was not leased to any other person,
(c) a manufactured home, as defined in the Manufactured Home Act, situated on land not owned by the owner of the manufactured home and in which the deceased person and his or her spouse were ordinarily resident, or
(d) a parcel of land on Nisga’a Lands or treaty lands that has as improvements situated on it a building in which the deceased person and his or her spouse were ordinarily resident,
(i) owned or owned in common by the deceased person and not leased to
another person, (ii) held or held in common by the deceased person by way of a right to
possession under Nisga’a law and not leased to another person, or (iii) held or held in common by the deceased person by way of an interest
under the laws of a treaty first nation and not leased to another person;

“spouse” has the meaning given to it in section 2 [when a person is a spouse under this Act]’, “taxing treaty first nation” has the same meaning as in the Treaty First Nation Taxation Act; “testamentary instrument” means a will or designation or a document naming a person to receive a
payment or series of payments on death under a plan or arrangement of a type similar to a benefit
plan;

“will” means
(a) a will,
(b) a testament,
(c) a codicil,
(d) an appointment by will or by writing in the nature of a will in exercise of a power,
(e) anything ordered to be effective as a will under section 58 [court order curing deficiencies], or
(f) any other testamentary disposition except the following:

(i) a designation under Part 5 [Benefit Plans];
(ii) a designation of a beneficiary under Part 3 [Ufe Insurance] or Part 4 [Accident
and Sickness Insurance] of the Insurance Act, (iii) a testamentary disposition governed specifically by another enactment or law of British Columbia or of another jurisdiction in or outside Canada;

“will-maker” means a person who makes a will;

The new term “will-maker” replaces the term “testator”.

“will-maker’s signature” includes a signature made by another person in the manner described in subsection (2).
(2) A reference to the signature of a will-maker includes a signature made by another person in the will-maker’s presence and by the will-maker’s direction, and the signature may be either the will-maker’s name or the name of the person signing.
(3) If there is any conflict or inconsistency between this Act and the Trustee Act with respect to the powers and duties or office of a personal representative, this Act prevails to the extent of the conflict or inconsistency.

Powers of Subpoenas for Testamentary Documents Increased

New Rule 25- 12 of WESA greatly expands the subpoena process in obtaining testamentary documents and grants.

Rule 25-12 (1) allows a person to apply for a subpoena to require a person to deliver to the registry a testamentary document and list of other estate related documents.

The subpoena is a document that can require a person to deliver up a document to the registry, including any one or more of the following:

-An estate grant
-a foreign grant
-resealed grant
-an authorization to obtain receiving information
-an authorization to obtain state information
-a testamentary document

The subpoena is filed of the court registry along with the supporting affidavit in form P35.
The court must be initially satisfied that the documents have been requested and have not been produced and are relevant.

The issued subpoena must be personally served and that person may apply to the court to have the document set aside. The court has a broad discretion in this regard and may make any order that it considers will further the object of the new probate rules.

Perhaps recognizing the reluctance on some estate litigants to provide documents or information, Rule 25-12-(5) allows the registrar to certify noncompliance with the subpoena, and

(6) empowers the court to issue an arrest warrant on proof of service of the subpoena, proof the documents are required, and production of the noncompliant certification.

Rule 25-12 is as Follows:

RULE 25-12—SUBPOENA FOR TESTAMENTARY DOCUMENT OR GRANT

How to obtain a subpoena for testamentary document or grant

(1) A person may apply for a subpoena to be issued to require a person to deliver to the registry
one or more of a testamentary document, an authorization to obtain estate information, an authorization
to obtain resealing information, an estate grant, a foreign grant, a resealed foreign grant and a certified or
notarial copy of such a document.

Filings required

(2) An application may be brought under subrule (I) by filing
(a) a requisition for subpoena in Form P35 that provides for the applicant an address for service that is an accessible address that complies with Rule 4-1(1), and
(b) an affidavit in support of the request.

Subpoena may be issued

(3) On being satisfied that

(a) the document in relation to which the subpoena is sought is required for the purpose of any application or other matter under this Part, and
(b) the person to whom the subpoena is addressed failed to comply with a request of the applicant to provide the document to the applicant,
the registrar may issue the subpoena, in Form P37, sought by the application.

Service of subpoena

(4) A subpoena issued under this rule must be personally served and, if an affidavit is filed for the
purpose of proving the service, the affidavit must state when, where, how and by whom service was
effected.

Certification of non-compliance

(5) The registrar may endorse a copy of the requisition for subpoena in Form P35 with a notation
that the person to whom the subpoena was directed has not, within a specified period done either of the
following:

(a) delivered to the registry the document referred to in the subpoena;
(b) provided to the registrar an affidavit indicating that the document referred to in the subpoena is not in the person’s possession or control and setting out what knowledge the person has respecting that document.

Failure of subpoenaed person to file document

(6) On receipt of
(a) proof that a subpoena was served on a person (the “served person”),
(b) proof that the delivery of the documents required by the subpoena is required for the purpose of any application or other matter under this Part, and
(c) a copy of the requisition for subpoena in Form P35 that has been endorsed by the registrar in accordance with subrule (5),which the court, by its warrant in Form P36 directed to a peace officer, may cause the served person to be apprehended and promptly brought before the court and to be detained in custody or released on terms the court may order, and the court may order the served person to pay the costs arising from his or her failure to file the document.

Release of apprehended person

(7) The court may, by release order in Form 117, order the release of a person apprehended under
subrule (6) on receiving an undertaking in Form 116 from that person.

Order setting aside subpoena

(8) A person who has been served with a subpoena under this rule may apply to the court for an
order setting aside the subpoena on the grounds that compliance with it is unnecessary or that it would
work a hardship on the person, and the court may make any order it considers will further the object of
these Supreme Court Civil Rules.

Up to the introduction of WESA on March 31 next, a disputant of an estate could file a caveat which was good for six months, and which could be renewed as many times as necessary for a further six months at a time.

Rule 25-10 makes many significant changes to that of dispute replace caveats, first and foremost by changing their name to Notices of Dispute.

The Notice of Dispute will still prevent the issue of an estate grant, unauthorized nation to obtain state information, and authorization to obtain receiving information, and the receiving of a foreign grant under Rule 10 (8).

It can however only be filed once S 10 (2)
the new Form 29 requires more information on the grounds that the notice is filed than previously necessary under a caveat.

It may be amended once with leave of the Court 10(4)

10(6) Allows for a Court to renew a Notice of Dispute for any time it considers appropriate on certain criteria, no prejudice being one of them

Under S 10(10) the Court may remove a Notice of Dispute on the grounds of S 10(11), that the filing is not in the best interests of the estate.

Rule 10 (12) States that the N0tice to Dispute ceases in one year from the date of filing, subject to it having been renewed.

NOTICES OF DISPUTE

Notice of dispute

(1) To oppose the issuance of an estate grant, an authorization to obtain estate information or an
authorization to obtain resealing information or to oppose the resealing of a foreign grant, a person to
whom documents have been or are to be delivered under Rule 25-2(2) must file a notice of dispute that
accords with subrule (3) of this rule before the earlier of
(a) the issuance of an authorization to obtain estate information or an authorization to obtain resealing information, and
(b) the issuance of an estate grant or the resealing of a foreign grant
Only one notice of dispute to be filed
(2) A person must not file more than one notice of dispute in relation to any one estate.

Contents of notice of dispute

(3) A notice of dispute referred to in subrule (I) must be in Form P29, must provide an address for
service of the disputant, which address for service must be an accessible address that complies with

Rule 4-1(1), and must disclose
(a) that the disputant is a person to whom documents have been or are to be delivered under Rule 25-2(2), and
(b) the grounds on which the notice of dispute is filed.
Amendment of notice of dispute
(4) A notice of dispute may be amended once without leave of the court, and after that only with leave of the court-Amendment of notice of dispute

(5) Rule 6-1 (2) and (3) apply to an amendment of a notice of dispute without leave of the court and, for that purpose, a reference in that rule to a pleading is deemed to be a reference to the notice of dispute.
Renewal of notice of dispute

(6) The court may renew a notice of dispute, for any period the court considers appropriate, as
follows:
(a) if the application for renewal is brought before the notice of dispute ceases to be in effect, if the court is satisfied that it is appropriate to make an order for renewal;
(b) if the application for renewal is brought after the notice of dispute ceases to be in effect, if the court is satisfied that
(i) there were good reasons that the application for renewal could not be brought before the notice of dispute ceases to be in effect,
(ii) substantial prejudice would be suffered by the person seeking renewal of the notice of dispute if the order for renewal is not made, and
(iii) no other person interested in the estate would suffer substantial prejudice if the order for renewal is made.

Application for renewal of notice of dispute

(7) Subject to Rule 8-5(6), an application to renew a notice of dispute filed in relation to an estate
must be made on notice to
(a) each person who has submitted for filing a submission for estate grant, or a submission for reseating, in relation to the estate,
(b) each person who has filed a notice of dispute in relation to the estate, and
(c) any other interested person to whom the court directs notice be given.
No grant while notice of dispute in effect

(8) While a notice of dispute is in effect in relation to the estate of a deceased, the registrar must
not, with respect to that estate,

(a) issue an estate grant, an authorization to obtain estate information or an authorization to obtain reseating information, or
(b) reseal a foreign grant

Withdrawal of notice of dispute

(9) A disputant may withdraw a notice of dispute by filing a withdrawal of notice of dispute in
Form P30.

Application to remove notice of dispute

(10) A person who is interested in an estate in relation to which a notice of dispute has been filed,
including, without limitation, an applicant for an estate grant or for the resealing of a foreign grant, may
apply on notice to the disputant for an order removing the notice of dispute.

Grounds on which notice of dispute may be removed

(11) On an application under subrule (10), the court may, by order in Form P31, remove a notice of
dispute if the court determines that the filing is not in the best interests of the estate.
When notice of dispute ceases to be in effect

(12) A notice of dispute in relation to an estate ceases to be in effect as follows:

(a) subject to paragraph (b), on the date that is one year after the date on which the notice of dispute was filed;
(b) if the notice of dispute has been renewed under subsection (6), at the end of the renewal period;
(c) if the notice of dispute is withdrawn by the disputant under subrule (9);
(d) if the will in relation to which the notice of dispute relates is proved in solemn form;
(e) if the court orders, under subrule (11) or otherwise, that the notice of dispute is removed.

Following upon section 58 of WESA, section 59 radically expands the courts powers to rectify a will and allow it to carry out the will maker’s intentions.

It does not matter if the court is sitting as a court of construction or as a court of probate, as its previous power confining into deleting words from the will that the probate stage.

The primary purpose of section 59 is to have the court rectify the will if the court determines that the will fails to carry out the will maker’s intentions because of such things as a clerical error, a misunderstanding on the part of the lawyer who prepared the will or the will maker.

Rectification of will

59 (I) On application for rectification of a will, the court, sitting as a court of construction or as a court of probate, may order that the will be rectified if the court determines that the will fails to carry out the will-maker’s intentions because of
(a) an error arising from an accidental slip or omission,
(b) a misunderstanding of the will-maker’s instructions, or
(c) a failure to carry out the will-maker’s instructions.

(2) Extrinsic evidence, including evidence of the will-maker’s intent, is admissible to prove the existence of a circumstance described in subsection (I).

(3) An application for rectification of a will must be made no later than 180 days from the date the representation grant is issued unless the court grants leave to make an application after that date.

(4) If the court grants leave to make an application for rectification of a will after 180 days from the date the representation grant is issued, a personal representative who distributes any part of the estate to which entitlement is subsequently affected by rectification is not liable if, in reasonable reliance on the will, the distribution is made

(a) after 180 days from the date the representation grant is issued, and
(b) before the notice of the application for rectification is delivered to the personal representative.
(5) Subsection (4) does not affect the right of any person to recover from a beneficiary any part of
the estate distributed in the circumstances described in that subsection.

Also of great significance is the addition of subsection to allowing for the introduction of extrinsic evidence, including evidence of the will maker’s intent, to prove the existence of a circumstance described in section 1.

There is a 180 day limitation for rectification of a will from the date the representation grant is issued unless the court grants leave to make an application after that date

Definition of Will Expanded

Under WESA the definition of will is expanded to include the will itself, a testament, a codicil, an appointment by will or writing in the nature of a will in exercise of a power, and under s 58, anything ordered by the Court to cure a deficiency in the will, or any other testamentary disposition.

The definition is:

“will” means
(a) a will,
(b) a testament,
(c) a codicil,
(d) an appointment by will or by writing in the nature of a will in exercise of a power,
(e) anything ordered to be effective as a will under section 58 [court order curing deficiencies], or
(f) any other testamentary disposition except the following: (i) a designation under Part 5 [Benefit Plans];
(ii) a designation of a beneficiary under Part 3 [Life Insurance] or Part 4 [Accident
and Sickness Insurance] of the Insurance Act;
(iii) a testamentary disposition governed specifically by another enactment or
law of British Columbia or of another jurisdiction in or outside Canada;

While it will be the subject of a further blog, it is really s 58 that is one of these most significant changes under the entire legislation.

Section 58 of WESA is essentially a dispensing power of the court to relieve against any formal defects to comply with the formal requirements of the will.

The power essentially allows the court to remedy a defect in the formalities of execution of the will that would otherwise result in the defeat of the deceased’s “true testamentary intentions”.

It is a broad power that allows the court to consider and determine whether any record document or writing or marking on the will should be given testamentary effect.

Granting relief, the test to be applied by the court is not one of substantial compliance with testamentary formalities, but instead is whether the record in question reflects” the testamentary intentions of the deceased person “( S 58 (2) (a)