Changes coming to BC Wills law

It has been a long time coming, but the BC government has passed a new law that will replace a bunch of existing laws dealing with the making of wills and the administration of estates. The law is not yet in force, but if you are interested in this area of law, it makes sense to know ahead of time what is changing.

For example, did you know that if you have a will, and then you get married, the will is no longer valid? The only exception is where you make a will that mentions the upcoming marriage, names the new spouse and the date of the wedding. And if you don’t do that? Your spouse could find that you died without a valid will!

This change brings legal marriages into line with common law marriages, because there is nothing about just moving in together that invalidates your existing wills.

Another interesting change deals with what happens when a person does die without a will. Right now, if a person dies leaving a “spouse” and children, the spouse gets the right to live in the house (assuming the house was only in the deceased’s name) for life. (A family home in joint ownership is not affected.) He or she also gets the first $65,000 of the deceased’s remaining estate, and splits the rest with the deceased’s kids.

Under the new law, assuming the house is only in the deceased’s name, the spouse does not get the right to live there for life. Instead, he or she gets the first $300,000 (which can include the house), but only if all the deceased’s kids are also his or her kids. If there are children of the deceased from another relationship, then the surviving spouse only gets the first $150,000. In either case, if there is more in the estate than the first $300,000 or $150,000, as the case may be, then that excess gets split 50/50 between the surviving spouse and the deceased’s children. That means the kids can easily end up owning part of the family home.

Given the value of real estate these days, it really makes sense to encourage your spouse to add you as a joint tenant to the family home if that’s appropriate (it isn’t always) and to make a will.

A third big change is the broad powers the courts will have to “fix” problems with wills. You wrote all over your will? You added stuff after you signed it? You never actually got around to signing it after you went to see your lawyer? These may not be the big problems they used to be. Currently, if you cross something out on your will and write in something to replace it, the crossed out parts that can no longer read are gone, but the replacement parts are not valid unless you signed and had them witnessed according to the rules for making a valid will. The result can be a gap in your testamentary wishes. Under the new law, it will be possible for your executor to go to court to ask for an order fixing that problem. Of course, the cost of that means less for the residuary beneficiaries, so it’s bestter to avoid such problems in the first place.

If you want to make changes to your will, it is still best to consult an expert and have it done properly, or, new law or not, part of your estate could still end up in the wrong pockets!

I’ll write more about the coming changes in future posts.

About Maria Holman

I am a lawyer with over 28 years of experience in drawing up wills, trusts and estate plans, helping clients with probate and estate administrations and advising business owners and families about planning for the future. You can find me at Webster Hudson & Coombe LLP in Vancouver, BC
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