Wills, Estates And Succession Act of British Columbia (WESA) is a provincial statute that governs the law of inheritance in British Columbia, Canada. [1]
The bill was introduced in Legislative Assembly of British Columbia on September 24, 2009, and received royal assent on October 29, 2009. WESA amalgamated and in some cases replaced five earlier pieces of legislation. These include: Estate Administration Act RSBC 1996, c. 122, Probate Recognition RSBC 1996, c. 376, Wills Act RSBC 1996, c. 489, Wills Variation Act RSBC 1996, c. Law and Equity Act RSBC 1996, c. 253, s. 46, 49, 50 & 51 and Survivorship and Presumption of Death Act RSBC 1996, c. 444. [2] WESA has given the court curative discretion under Part 5, and in Section 60 allows the court to invalidate and supplant testamentary instruments that are deemed by the court defective as regards proper maintenance and support of the will-maker's spouse or children.
Prior to enacting WESA, British Columbia Legislature spent thirty years reviewing the province's estates law. Many of the subsequent changes later introduced under this Act, were initially intended to fill in gaps not previously remedied by orders-in-council. Through the enactment of WESA, the legislature signalled the need to amalgamate sister statutes under a single umbrella. It also brought conformity between BC estates law, and rest of Canada. [3]
Before Justice Elaine Adair on 17 July 2019, [4] Section 60 was employed successfully by Trevor Todd, an estate litigation lawyer, to broaden its mandate; he thereby instructed the court to re-apportion a Sikh estate, in which the original parental will left the lion's share of the farm estate to the sons. Bethany Lindsey, a journalist at CBC, stated that the WESA "gives judges wide leeway to make drastic changes to a will to make sure there's a 'just and equitable' distribution to someone's surviving spouse and children." [5]
Some of the primary changes under the new WESA regime include the following:
Prior to relying on its Section 58 powers, the court must be satisfied that instrument in question satisfies the following criteria:
Upon satisfying the above requirements, the court will then proceed to the following two-step inquiry, as first illustrated in Re Young Estate, 2015 BCSC 182
As stated by Madam Justice Dickson J. in Re Young Estate, 2015 BCSC 182, each inquiry shall be based on "intensely fact-specific considerations".
Some of the recent changes heralded under WESA have been considered to impinge upon testamentary freedom. WESA seeks to balance this freedom with the testator's overall moral obligations to society. In Ciarniello v. Ciarniello Estate, 2016 BCSC 1699 Sigurdson J brought to his judgment an earlier BCCA ruling [8] which stated: [9]
the conceptual essence of the statute is to permit judicial interference with testamentary freedom where adequate provision has not been made in respect of a narrow protected class. Testamentary freedom is, therefore, subordinate to the main objective of the [now superseded] Wills Variation Act and must yield, to the extent required, to achieve adequate, just and equitable provision for the applicant spouse and/or children. That said, the judicial approach is not to start " with a blank slate and write a will designed to right all the perceived wrongs of the past, nor interfere only to improve upon the degree of fairness of a will if the testator has met his obligations under the Wills Variation Act ": Chan v Lee (Estate), 2004 BCCA 644 at para. 43.
Sigurdson J further noted, following the leading BC case Tataryn v Tataryn Estate [1994] 2 S.C.R. 807, that
If the phrase 'adequate, just and equitable' is viewed in light of current societal norms, much of the uncertainty disappears...
Following this line of reasoning, BC courts may impinge upon testamentary freedom, or deem it as a secondary purpose under the statute, whenever there is an unaddressed issue concerning the testator's general moral obligations to society, which are interpreted liberally as to equipartition the estate. [10]
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