Wills, Estates and Succession Act

The Wills Estates and Succession Act (‘WESA’) has been in force since March 31, 2014

It overhauled the existing legislation by repealing six different legislative acts to form a unified piece of legislation for the area of wills and estates. The hope behind the legislation was to streamline the process by affording greater clarity to those dealing with wills and estate issues, from people drafting wills to those acting as executors of an estate.

However, in the context of making wills variation claims, WESA did not make many substantial changes and mirrors the older Wills Variation Act. There are some changes though that have made an immediate impact as most cases are now tried under the new legislation. For example, Section 2 of WESA acknowledges both marriages and “marriage-like” relationships of at least two years including same sex marriages. There is also no reference to “co-habitation” in WESA as there was under the old legislation. Spouses end their common law relationships when one or both persons terminate the relationship. The supposed termination of a marriage, after a two-year separation where only one party’s intention is to live separate and apart, has a major impact as it means the loss of a married spouse’s right to vary a will. Additionally, WESA has not included a specific definition of children for the purposes of wills variation claims, and also extended the limitation period to bring a variation claim to 180 days.

Here are some further general changes that WESA has introduced:

1. Anyone over the age of 16 can make a Will (s. 36);
2. Courts have been given curing powers to rectify a Will so that they are not constrained by the formal requirements needed to recognize a Will as valid (s. 58);
3. A person must survive the testator for at least five days in order to receive a gift under a Will;
4. The period the executor has to wait to distribute an estate was extended from 6 months to 210 days (s. 10);
5. A lineal descendant system is now used to determine the distribution of an estate. The line of closest common ancestors is exhausted before other relatives can share in the estate (s. 23);
6. The person seeking to uphold a gift must show that there was no fraud or undue influence (s. 52);
7. There are higher standards for when a Will is considered revoked (s. 55);
8. An order of priority among potential administrators was created; beneficiaries can nominate people to act on their behalf (s. 130); and
9. Real property and personal property are applied equally towards the payment of expenses, debts and legacies even if the Will states a contrary intention (s. 162).

It is important to note that WESA does not apply where the testator has died prior to March 31, 2014. The old legislation will apply in these cases but probably there are very few claims still ongoing at this time that the old legislation would apply to.

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