Estate planning is a difficult and challenging part of a lawyer's practice. Preparing the will may be only one component, but it is fundamental to most estate plans. You need to understand a broad range of legal principles.
You should have a working knowledge of the common law as it pertains to wills and estates, and knowledge of relevant provincial and federal statutes.
It is important to note that the practice of wills and estates has undergone significant changes since the coming into force of the Wills, Estates and Succession Act S.B.C. 2009, c.13 (“WESA”) on March 31, 2014 (see BC reg. 148/ 2013). The changes in the law and procedure set out in WESA reflect the acceptance of many of the recommendations of the British Columbia Law Institute contained in its Report on Wills, Estate and Succession, B.C.L.I. Report No. 45 (June 2006).
Upon WESA's coming into force, the Estate Administration Act, R.S.B.C. 1996, c. 122; the Probate Recognition Act, R.S.B.C. 1996 c. 376; the Wills Act, R.S.B.C., 1996, c. 489; and the Wills Variation Act, R.S.B.C., c. 490 have been repealed and replaced. See WESA's transitional provisions at Part 7 to confirm its application where the will-maker died, a will was made, or probate was granted prior to WESA coming into force.
Some of the key legislative provisions which have changed under WESA include the following:
- Wills Act, R.S.B.C. 1996, c. 489 (note that the Wills Act was repealed and replaced by WESA on March 31, 2014)
- sections 3, 4 and 6 writing and signatures required: s. 37 (2) of WESA provides some leeway to the formal requirements for the execution of a will including by permitting the court to make an order curing deficiencies pursuant to s. 58.
- section 15 revocation by marriage: s. 55 of WESA replaces s.15 of the Wills Act so that a valid will is no longer revoked by a subsequent marriage of the will-maker. The new revocation rules are set out in s. 55 of WESA.
- section 16 revocation of a gift by dissolution of marriage: s. 56 of the WESA provides that unless a contrary intention exists in the will, a gift, appointment as executor, and power of appointment to a person who is or becomes the spouse of the will-maker is revoked if after the making of the will and prior to the passing of the will-maker, the will-maker and his spouse cease to be spouses. This is not affected by a later reconciliation of the will-maker and the spouse.
- Estate Administration Act, R.S.B.C. 1996 c. 122 (note that the Estate Administration Act was repealed and replaced by WESA on March 31, 2014)
- Part 10 distribution of estates on intestacy (ss. 81 – 99): Part 3, Division 1 of WESA makes some important modifications to the intestacy provisions. For example, WESA increases the spouse’s entitlement to include the first $300,000 (increased from the first $65,000) and half of the remainder if the intestate deceased's descendants are common to the intestate deceased and the spouse. That amount will be reduced to $150,000 and half the remainder if the intestate deceased’s descendants are not common to the intestate deceased and the spouse).
- Part 11 insolvent estates (ss. 100 – 108): Part 6, Division 12 of WESA provides for a new priority for the distribution of assets in insolvent estates including some protections for unpaid spousal support and family maintenance (WESA s. 170).
- Probate Recognition Act, R.S.B.C. 1996, c. 376 (note that the Probate Recognition Act was repealed and replaced by the WESA on March 31, 2014)
- Survivorship and Presumption of Death Act, R.S.B.C. 1996, c. 444 (note that the Survivorship and Presumption of Death Act was repealed and replaced by WESA on March 31, 2014)
- section 2 when 2 persons die at the same time the older is presumed to die first: section 5 of WESA replaced the presumption that the younger survived the older.
- section 10 of WESA implements a five day survival rule so that a person who does not survive the deceased by five days, or a longer period if set out in an estate planning instrument, will be deemed to have died before the deceased person. The Interpretation Act provides that the “first day must be excluded and the last day included” (s. 25(5)).
- Wills Variation Act, R.S.B.C. 1996 c. 490 (note that the Wills Variation Act was repealed and replaced by WESA on March 31, 2014)
- rights of spouses and children to seek relief in cases where a deceased dies leaving a will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the will-maker’s spouse or children
- see section 2(2) of WESA as to when a person ceases to be a spouse.
Other legislation that the wills and estates practitioner should be familiar with include the following:
- Family Law Act, S.B.C. 2011, c. 25
- Part 4, Division 3: Appointments of Guardians
- Adoption Act, R.S.B.C. 1996 c. 5
- s.37: Effect of Adoption Order
- Income Tax Act, R.S.C. 1985, c.1 (5th Supp.)
- Tax treatment of estate property on death and on transfer
- Representation Agreement Act, R.S.B.C. 1996, c. 405
- Power of Attorney Act, R.S.B.C. 1996, c. 370
- Insurance Act, R.S.B.C. 2012, c. 1
- s. 130: Simultaneous Death and Payment of Life Insurance
You should also have access to reference materials such as:
- Wills and Personal Planning Precedents: An Annotated Guide by Peter Bogardus and Mary B. Hamilton (looseleaf, The Continuing Legal Education Society of BC).
- BC Probate & Estate Administration Practice Manual, 2nd ed. (looseleaf, The Continuing Legal Education Society of BC).
- Basics of Wills and Estates Planning by John Lakes (2006, Continuing Legal Education Society of BC).
- The Law of Dependants Relief in Canada 2nd ed., by Harvey Cameron, Q.C. and Linda Vincent (Carswell, 2006).
- The Law of Dependants Relief in British Columbia by Leopold Amighetti (1991, Toronto: Carswell)
- Annual Review of Law & Practice (published annually, The Continuing Legal Education Society of British Columbia).
- Practice Checklist Manual (Law Society of British Columbia). This manual includes checklists for the will-maker Interview, will drafting, and will procedures.
You must use skill and care in your wills practice, from gathering information from the testator, to giving advice, and to preparing or drafting the final documents. The form, content and execution of the will are all vitally important.
On January 1, 2013, Rule 3.1-1 of the Law Society of British Columbia's Code of Professional Conduct replaced Chapter 3, Rule 1 of the Professional Conduct Handbook. Rule 3.1-1 summarizes the level of knowledge and skill that a lawyer must have before engaging in a particular area of practice.
While your practice may be restricted to the preparation of wills, you must also be cognizant of matters that will facilitate probate. For example, you may decide to take an affidavit from a witness where there are unusual circumstances with the will-maker’s signature (e.g., where the will-maker is blind or is a quadriplegic who is only able to sign with a simple mark). Also, it is wise to familiarize yourself with probate procedure so you are aware of simple formatting issues, such as leaving enough room on the face of the will for an exhibit stamp to be placed later for the affidavit in support of the application for an estate grant. General knowledge of the law of estates administration will enhance your practice skills.
Recommended further reading to complete this module:
General Practice Overview – 2007, Wills, Trusts and Estate Planning: A Core Practice Area for the General Solicitor (The Continuing Legal Education Society of BC).
At p. 2.1.2 to 2.1.5, this 2007 CLE paper describes the preparation of the will as part of the broader task of developing an estate plan, and highlights some of the main pitfalls awaiting lawyers in preparing wills.
See also, a Tax Primer, a portion of the material entitled A Primer–Tax Fundamentals for Will and Estate Planners, referred to in the linked material above. The portion is taken from p. 2.1.2 to 2.1.8 of a CLE course, Wills and Estate Planning Basics – 2006. The full text of the Primer also contains information on testamentary trusts and income splitting, and testamentary spousal trusts.
Additional resources on taxation of trusts and estates can be located at the BC Courthouse Library website in the Practice Portal for Wills & Estates http://www.courthouselibrary.ca/practice/WillsEstates.aspx