1. The Wills, Estates and Succession Act (WESA) replaced the Wills Act, the Wills Variation Act, the Estate Administration Act and the Probate Recognition Act on March 31, 2014
2. The terms “testator/testatrix” have been replaced by “will-maker”
3. Validity: You must be 16 to make a Will, a Will must be in writing, signed by the will-maker at the end in the presence of 2 witnesses, and 2 witnesses sign
a. Otherwise, Will is invalid unless the court orders that the Will is effective – the former strict compliance for validity is gone however:
i. Now depends on the court determining that the record or document represents the deceased person’s testamentary intentions
ii. A record includes an electronic document if it can be read by a person and can be reproduced in a visible form, e.g. printed out on paper
iii. A court could accept an email, text message, bits of paper or notes as a Will
iv. To determine intention a court might even consider a video recording of the deceased person making a note of his or her wishes or expressing them for the video
v. The list of what a court might consider and accept as the deceased person’s testamentary intentions is wide open
4. Marriage no longer revokes a Will (for marriages taking place on or after March 31, 2014).
5. Separation: Subject to a contrary intention expressed in the Will, a gift in a Will to someone who is or becomes a spouse, is revoked if the Will-maker and his or her spouse cease being spouses:
a. a couple ceases to be spouses if:
i. they are married and an event occurs that causes an interest in family property to arise, i.e. the parties separate
ii. they are in a marriage-like relationship (“common law”) and one or both terminate the relationship.
b. If spouses reconcile within one year after separation and continue to live together for a period totaling at least 90 days, a gift under a Will is not revoked.
c. A separated spouse no longer has any entitlement to the deceased former spouse’s estate if the deceased spouse has died without a Will.
d. A separated spouse no longer has the right to apply to vary the deceased former spouse’s Will.
6. Intestacy: Dying without a Will – how is the estate divided up? Who inherits?
a. Spouse and no descendants – spouse gets it all
b. Spouse and descendants – spouse gets household furnishings and ‘preferential share’
i. All descendants are descendants of spouse and deceased, preferential share is at least $300,000
ii. All descendants are not common to the spouse and the deceased, preferential share is $150,000
iii. Once preferential share paid out, 50% of remainder to spouse and 50% to descendants no matter how many there are
iv. If there are two or more spouses, the spouses must agree on the division or the court will decide
c. No spouse but descendants or relatives
ii. Parents in equal shares
iii. Descendants of parents
d. Grandparents, or descendants of grandparents
i. ½ to one side
ii. ½ to the other side
e. Great grandparents or descendants
f. Limit on degrees of relationship that qualify as intestate successors – other than descendants more than four degrees of separation from deceased are excluded
g. If no heirs, the estate escheats to the Crown
h. Application for probate requires notice to intestate successors so you need to know who is included
i. Intestate successors must consent to distribution of an estate if distribution proposed within 210 days of grant of probate or administration
7. The Spousal or Matrimonial Home: On an intestacy or where there is a Will but the spousal home is not subject to a gift:
a. The spouse has 180 days after grant to exercise the right to buy the home in whole or in part in satisfaction of the spouse’s interest
8. Undue Influence:
a. If A claims that a Will or a provision resulted from B being in a position where there was a potential for dependence or domination of the will-maker and that B used that position to unduly influence the will-maker to make the Will or provision, A only has to establish that B was in a position where that potential was present.
b. The executor or B then has the obligation to prove that B did not exercise undue influence.
c. Burden of proof has shifted making it easier for plaintiffs to make (and succeed in) undue influence claims.
d. The limitation period to file a claim is 180 days