This is not legal advice. This is only general legal information to provide you only with a basic understanding of the topic. Parts of this article may become suddenly outdated at any time either by a new case or a change in legislation. Do not rely on this article to make legal decisions. Read it and then see a lawyer.
A will is the document by which a person can distribute his or her belongings after their death.
Some are quite imaginative.
But a person dying without a will, or with with an invalid will, is said to die intestate and his or her assets are then distributed according to the Estate Administration Act.
This statute pays no attention whatsoever to what the wishes of the deceased might have been had there of been a will. There is no requirement to search diaries or letters and to try to consruct testamentary wishes from anywhere. If there is no valid will, the statute sets out the distribution.
What follows is a rough outline of how property is divided if someone dies intestate. It is based on hypothetical situations and may not be adjusted to recent case law so do not rely on this table as legal advice.
||Who Gets What
|Just a spouse; no descendants.
||Spouse gets all.
|Spouse and one child (eg. child or grandchild)
||Spouse gets first $65,000, household furnishings and estate for life in matrimonial home. Whatever is left is divided ½ to spouse and ½ to descendant per stirpes.
|Spouse and more than one child.
||Same as above except that spouse gets only 1/3 of residue; 2/3 goes to descendant per stirpes.
||Descendants receive entire estate per stirpes.
|No spouse or descendants.
||Equally to parents or all to sole surviving parent.
|No spouse, no descendants, no parents.
||Equally to siblings. If a sibling has passed away, their children take their deceased parent's share (i.e. per stirpes distribution).
|No spouse, no descendants, no parents, no siblings.
||Nephews and nieces equally but no representation of deceased nephews or nieces (i.e. per capita distribution).
|No spouse, no descendants, no parents, no siblings, no nephews or nieces.
||Equally between next-of-kin of equal relation to deceased; no representation for those next-of-kin that have died before the deceased (i.e. per capita distribution).
Next-of-kin of half-blood inherit on par with those of whole blood.
Also, persons conceived at the time of death but not yet born, inherit as if they were alive at the time of death.
And even if a person dies with a will, remember that the distribution rules of intestacy apply for that property which has not been distributed by the will.
Note that most wills have a clause which says that "the residue of my estate goes to X" and when such a clause is present, this covers the residue and eliminates any referral to the rules distribution under intestacy.
The Estates Administration Act also says that if spouses were living separate for a period of a year before the death, then the surviving spouse does not inherit on an intestacy basis.
The Act also provides limited rights to a common law spouse provided that they were living together for "not less than 2 years immediately preceding his death" and the deceased had been supporting the common law spouse.
In such a case, the surviving common law spouse can apply to the court for an order providing for her (or his) maintenance and such a request must be made within the 6 months after the date of the issue of the letters of administration.
These are not the only ways a common law spouse can receive a benefit from an intestacy estate; see, for example, the Peter v. Beblow case.
The Act makes no such distinction when it comes to recognizing children of the deceased. Whether they were born out of wedlock or not has no affect on their standing in an intestacy situation.
If a person dies without leaving any successors, the property goes to the government.
The Estate Administration Act is not necessarily tax-friendly.
If you have minor children, the Infants Act allows you to appoint a guardian in your will. Without this, a court will appoint a guardian for your child! These are just some of the good reasons to not only prepare a will, but to consult a lawyer when doing so.
The general rule, as set out in the Wills Act, is that:
"... a person may by will devise, bequeath or dispose of all property, whether acquired before or after making his will, to which he is entitled .... at law."
Nevertheless, some property cannot be transferred by will. Some obvious examples include the proceeds of a life insurance policy which will go to the designated beneficiary regardless of what the will says. Property held in joint tenancy passes to the other joint tenants and some matrimonial property is protected under the Family Relations Act.
The preparation of a will in British Columbia is governed by the Wills Act.
- A will is valid only when it is in writing.
- Signed at its end by the testator or signed in his name by some other person in his presence and by his direction.
- Signature executed or acknowledged in the presence or two or more witnesses both present at that same time. Handwritten, unwitnessed wills (holograph wills) are not recognized under British Columbia law.
- Witnesses must undersign the will in the presence of the testator.
- The testator must be 19 years or older unless married or in the Armed Forces.
To these general rules there are exceptions.
For example, a will can be signed on behalf of the testator in some circumstances.
Some special wills are recognized in British Columbia such as the serviceman will, which does not require a witness. Membership in the armed forces may also lower the age of majority for the purposes of preparing a valid will. Hand-written wills are valid in BC provided they are signed by the testator and two witnesses. Wills which do not have witnesses are which are fully handwritten are called holograph wills and are not recognized in British Columbia except in the limited circumstances of servicemen wills. Again, because of the exceptions, readers are advised to consult a lawyer before preparing a will.
For witnesses, the rules are more complex. The witnesses must know you and they cannot be beneficiaries. If a witness or their wife or husband is a beneficiary, the bequest to them is void to validate their witnessing. The only thing that could save the bequest under these circumstances would be if there were more than 2 witnesses, and one is a beneficiary (or husband or wife thereof), then the two non-beneficiary witnesses would suffice to validate the will and salvage the bequest to the third witness. Note also that executors can be witnesses to a will.
Wills are not that easy to revoke. The Wills Act is quite specific. First of all, a marriage nullifies an existing will unless the will was made in contemplation of the marriage (there is another technical exception related to trusteeship; for more, see the Wills Act). Other methods include making another, more recent will; declaring in writing that you revoke your will following the same formalities as would be required for a valid will; or the purposeful destruction of the existing will with the intent of revoking it.
Alterations to a will, such as hand-written insertions, are invalid unless, again, they follow the formalities of the will. In other words, the alterations must be signed by the testator and witnesses, in the margin and near the alteration. Interlineations (words added between lines) are presumed to be inserted after the will was signed so even if they are inserted before signed and witnessed, interlineations should be formally attested to in the margin. Note the Supreme Court Rules 61(14) and (15):
"When an interlineation or alteration appears in the will, which is not properly executed, or recited in, or otherwise identified by the attestation clause, an affidavit in proof of its existence in the will before execution must be filed, except when the alteration is of small importance and is evidenced by the initials of the attesting witnesses.
"An erasure or obliteration shall not prevail unless it is
(a) proved to have existed in the will at the time of its execution,
(b) properly executed and attested, or
(c) rendered valid by the re-execution of the will, or by the subsequent execution of a codicil,
but if no satisfactory evidence can be adduced as to the time when the erasure or obliteration was made, and the words erased or obliterated are not entirely effaced, but can be ascertained on inspection, the words must form part of the probate."
Note the distinction that you may want to make between distribution per capita or per stirpes.
A per capita distribution means "by the head" and requires beneficiaries to be alive in order to acquire their share. If a beneficiaries des before the testator, his or her share goes to the other beneficiaries; not to the heirs of the beneficiary.
Per stirpes is also Latin referring to the offspring of a person; his or her descendants. For example, inheriting per stirpes means having a right to a deceased's estate because you happen to be a descendant of the deceased. If a beneficiary dies before the testator where a per stirpes distribution applies, the share passes to the beneficiary's heirs.
British Columbia also has a Wills Variation Act that says:
"Notwithstanding any law ... to the contrary, if a testator dies leaving a will which does not, in the court's opinion, make adequate provision for the proper maintenance and support of the testator's wife, husband or children, the court may, in its discretion, in an action by or on behalf of the wife, husband or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the estate of the testator for the wife, husband or children."
The "court" referred to is the Supreme Court and an application under the Wills Variation Act must be "commenced within 6 months from the date of issue of probate of the will."
The Wills Variation Act does not apply in an intestacy situation, in which case the statutory rank detailed above is imposed. A divorced spouse does not qualify (as of the date of death) nor is a court bound to the terms of a prenuptial or separation agreement when considering a variation under the Wills Variation Act.
When these applications occur, the executor usually remains neutral. If the executor wishes to contest the matter, they must resign as personal representative.
The courts are divided as to what criteria to use although that of "need" is the most generally accepted. Note also that the Wills Variation Act allows the court to refuse the application where the applicant's "character and conduct, in the court's opinion, disentitles him or her."
Here's a sample will:
1. This is the will of (insert your name here), of the city of (insert your city or town of permanent residence here), province of British Columbia, made on (insert complete date).
2. This revokes all previous wills.
3. I appoint (insert name of executor here) to be the executor of this will and to pay all my debts, funeral expenses and testamentary expenses as soon as possible after my death and to this end, my executor shall have full rights and powers to do anything in regard to my property which I could do if living including, as may be necessary, and in the sole discretion of my executor, the conversion on parts or the whole of my property into money.
4. My executor shall transfer the following specific items of my property to the following beneficiaries:
(insert the specific items and to whom, using full names, they are to be given).
5. My executor shall pay or transfer the residue of my estate to (insert the name of the person to whom the rest of your estate is to go once the above distribution of specific bequests has been made).
Signed by (insert your name here) in the presence of two witnesses who, at the request of (insert your name here) and of each other, and believing (insert your name here) to be of sound mind and body and under no duress, have subscribed our names as witnesses.
(add signature in the presence of two witnesses)
(have both witnesses add their signatures)
This is a very basic will. There are many other factors which can impact significantly on the validity of your will. For example, they can be revoked or altered. There are some basic rules on the appointment and powers of your preferred executor. If the testator is a parent of a minor child, instructions for guardianship should be included. Some of your property may be kept outside of British Columbia. These and other issues are well known to lawyers and far exceed the scope of this introductory article.
Once you've read this article, you will be well prepared to consult a lawyer to have your will prepared with the peace of mind of knowing that all legal issues will have been covered with the professional metamorphosis of your final wishes to the text of a professional will.