Roger writing the LAWmag

Protecting the Dead From the Undead: Wills and Probate Law Reform

If nothing else, when it is transparent, law reform can be an entertaining spectator sport. Anybody proposing wholesale changes to the law can be much like a beetle announcing arrival at an ant nest. The ants swarm out, warriors in front, and the beetle, though bigger than any individual ant, quickly disappears.

In law reform, the ants are the lawyers on the ground, many preferring that the nest not be shook, relying on the "if it ain't broke, why fix it?" rule. The rare voice for real reform is not often welcome. Exacerbating this is the historic fact that lawyers are almost naturally inclined to resist reform even in areas where reform is needed.

In 1974, McGill University law professor J. Lyon wrote:

"(O)ur provincial law reform statutes tend to look like carbon copies of the English Law Commissions Act..... The law reform model that has developed in Canada is a direct product of our legal training. Lawyers are ... trained to follow precedent and established procedures.... (M)any of our problems stem from organizational and mental rigidities."

Inside the Ant's Nest

Take the Canadian province of British Columbia with a population of 4.5 million (about the same as the American state of Kentucky). In this representative common law jurisdiction, law reform usually emanates from the government.

Law reform labyrintheOne could hardly imagine an area of law reform more desperate or challenging than that of wills and probate. This old ancient area of law is one where there is a disproportionate number of vulnerable citizens, such as old people who are pressed into signing Wills they do not understand. Probate is the fullfillment of a dead person's decisions in the absence of the most interested party, the decedent/testator. When a dishonest person who would be entitled to a large part of the estate if there were no will (intestate) comes across an original will which leaves him or her next to nothing, there is but that person's conscience preventing him or her from destroying the will and acting as if it never existed. It is a feeding ground for dishonest people and these opportunities for abuse need sharp, effective law to protect the citizenry.

Add to these fraud opportunities which exist in all jurisdictions and which the law has always struggled to control, the phenomenal complexity of wills and probate law. And here, once again, the analogy with an ants nest is appropriate as the process of probate in particular. There is an entrance, if you can find it, which leads to a wide variety of pathways and intersections where any wrong turn can completely compromise the process. Any non-lawyer who has ever had the privilege of being an executor, of probating a will and administering an estate would probably describe the process in more demeaning terms. It is an area of law reform where, according to one school of thought, the entire ants nest should be bulldozed in the process and redesigned for efficiency and plain language without compromising the protection the law affords in this area to citizens.

But that is not the way the world usually turns in law reform. For a wide variety of factors, and facing an impressive body of warrior ants which do not want the nest disturbed, real reform is often tentative and piecemeal.

British Columbia's WESA

British Columbia does not allow holograph wills, the handwritten will which would be both very inexpensive to the consumer and so useful, and it is perfectly legal in so many other jurisdictions. The fact that it is handwritten by the decedent perfects the necessary authenticity for probate purposes in other jurisdictions, though in British Columbia, a will needs two witnesses, neither of which should be a beneficiary. A new law called WESA (short for "Wills, Estates and Succession Act") does not change that though it would have been a welcome access-to-justice change for the consumer.

Nor does British Columbia celebrate, as least as of November 2013, the use of non-lawyer forms in probate. Probate, one would think, could be done by a couple, or maybe a few simple, user-friendly forms.

Where (what?) is WESA?One would need a scorecard to track changes in the related field of adult guardianship, wills, probate and estate administration in the jurisdiction of British Colombia over the past several years, and yet to come. This, because many of them are time-delayed. The latest and next at bat is a Wills Estates and Succession Act which changes nothing substantial and, with apologies to those who have worked on the statute, appears to be just a teaser, improvements on several points of detail but no real, deep, contemporary law reform in wills and probate. The substantial change is the fact that it collapses into five previous statutes into one statute. There are also a large number of smaller changes to address issues which have befuddled the local courts in the interpretation of wills.

In British Columbia, it seems the government really likes to tease the citizens and the legal profession by bringing in changes here and there, on a timetable for which the logic is not apparent, and so often long-after the date of approval by the Legislature. The new statute, already affectionately nicknamed "WESA", is best absorbed when the following five conditions are united:

  • Being a lawyer;
  • … in a quiet office;
  • ... on a good night sleep;
  • … with a couple of aspirins handy; and
  • … one or more cups of coffee.

WESA is the offspring of a report of the British Columba Law Institute dated 2006 (available, in November 2013 at this URL: http://www.bcli.org/publication/45-wills-estates-and-succession-modern-legal-framework). One can just imagine the committee meetings of these well-intentioned, experienced and hard-working will, estate and probate lawyers who would not have had the inclination to reinvent the wheel, start-from-scratch reform, that seems to be so anathema to this area of society.

2006, according to Grade 1 math, is some seven years ago. In the result of government consideration and consultation, the resulting statute, WESA was put to the local legislative assembly, approved in 2009, but the coming into force of most of it delayed until the magic date of March 31, 2014, presumably to allow all interested parties to get ready. It has the makings of being the most significant day of change, as far as body of law goes, for not only probate and estate lawyers, but also those that just dab in the occasional Will.

Some of the Changes

Under WESA, the testator does not have to be 19 to write a will. The age limit is being reduced to 16 years.

In British Columbia, at least until March 31, 2014, the marriage of a testator automatically revokes his/her existing Will. This creates a very unfair situation where a testator dies soon after his marriage and his void-by-marriage Will had left everything to his children. All of a sudden, a new husband or wife takes a not-insignificant share of the estate since the pre-marriage Will is presumed revoked.

That goes out the window, thank God. Although we don't like to generalize because it is not fair to everybody, many probate and estate lawyers have come across the odd scenario at least once in their estate practice of the so-called predatory marriage or gold-digger widow or widower, a person who at least as it is believed to be the case by the surviving children, married a mom or dad, often much older and always richer, with all due consideration given to money. One famous such case was the Anna Nicole Smith (see Anna Nicole Smith Law) who, whilst a young topless model, married 89-year-old lawyer and oil tycoon James Howard Marshall, worth $1.6-billion. He died a year later but whether or not exhaustion contributed to death, there is no know evidence. His latest will at the time of his death gave much of his assets to his voluptuous widow.

Very complicated signWESA also provides that when spouses separate, they lose any gift or appointment a pre-breakup Will provided, unless the Will provides otherwise which, under the basic rules of human nature, is probably unlikely. But beware and study the WESA definition of the word "spouse", as the devil is in the detail.

Another proposed change which might light up a probate file is that anybody who does not survive another person is deemed to have died before that person. This is to avoid the problem of double probate, and the 5-day period is a minimum and may be extended in the actual Will. Most people nowadays set that at 30 days, which is extensively described at The 30-Day Survivorship Clause.

Some of the detail of WESA will certainly be welcome. In the past, if a beneficiary of a Will was stupid enough to also sign as a witness, her or his legacy was void but she/he remained as a witness. This, in order to salvage the Will itself (it needs had two witnesses). Under WESA, same consequence but not absolute: the court is allowed to let the gift to the beneficiary/witness go. But a court application is necessary - ching, ching, ching.

Under WESA, there is no lightning of the significant load of rules; the content is merely switched. The lawyer or, heaven forbid, the do-it-yourselfer, will have to consult the Rules of Court of the Supreme Court of British Columbia and WESA and, where either of those make references to other statutes or regulations, and they do, to those other documents.

There are of course many other changes which, if detailed, would put this article in the running for the award given, if any award is given, for the longest legal information article in the history of law. Obviously, some arbitrariness has gone into the selection of which upcoming changes to discuss.

From Ants to Aliens

If aliens are watching and monitoring the development of law on this planet, in some small office in the lowest floors of a spaceship, a low rank-and-file alien would be recording this blip on the legal radar of the modernization of will and probate law on Earth. If there is a memo to be written and passed up the chain of command, it should mention that still to this day, no jurisdiction on earth has truly reformed will and probate law since Justinian in 533 A.D.  Instead, law-makers are content to make changes on points of detail to old European law which has been handed down over hundreds of years.

Those that write the law, or that influence the writing of the law are mostly lawyers. Lawyers are amazing people but the Steve Jobs of law reform has not been born yet or has not yet been called to the bar. If she or he is a lawyer, he/she is probably smarting and nursing ant bites from a latest suggestion.

And so in probate and wills law reform, we mark progress in inches and not miles, but progress nonetheless.

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