The Wills, Estates and Succession Act (WESA) effective March 31, 2014 in British Columbia modernized estate law. The new act includes new forms and processes. The need for probate of an estate is determined by the financial institution or the policy of the agency which holds an asset that is part of the estate. These entities may require than an executor apply for a representation grant in order to be recognized as the official rep of the decedent’s estate.
Estate Administration in British Columbia
A person may apply to be a named administer of an estate when the deceased has died with or without a will. This includes when the testator did not name an executor and when the executor has renounced the right to apply for court probate. With approval, a grant of administration is issued by the court. An application for a representation grant may be made in any Supreme Court registry. The responsibilities of an estate administrator are many. Basic duties include:
- Completing a valuation and inventory of both assets and debts
- Gathering names and addresses of all beneficiaries and family
- Taking control of all assets and collecting debts owed to the estate
- Paying all valid debts left to the estate to avoid personal liability
- Distributing assets and selling assets as necessary
- Cancelling charge cards and subscriptions
- Filing timely tax returns for the deceased and for the estate
- Obtaining approval from beneficiaries and providing accounts for showing distribution of the estate, receipts and disbursements
- There’s a lot of paperwork and timelines for estate administrators. An estate attorney like Gordon J. Dykstra, Lawyer in
- Abbotsford, BC, can help with the responsibilities. And if there are any questions or disputes about the validity or interpretation of a will, an experienced estate attorney should be consulted.
Contesting a Will
Canadian courts believe that a testator should have the freedom to dispose of their assets as they wish. If you feel that you haven’t received your fair share of an estate, you may be able to contest the will. The main grounds for contesting a will include failure to provide adequate provision for a child or spouse, lack of knowledge or approval of the will’s contents, undue influence, lack of testamentary capacity, mistake in drafting the will and invalid execution of signing the will.
Children and spouses have the right to challenge the deceased’s will on the basis of failure to make adequate provision for them. It is the court’s contention under the Wills Estates and Succession Act there is a moral obligation for adequate provision if there are sufficient assets. Considered factors include the financial need of the spouse or child, the size of the estate and the length of the marriage. If the deceased did not know or approve of the will’s contents, then a will may be deemed invalid. Considered factors include physical difficulties and the degree of emotional dependency on family. Undue influence is the most common ground for challenging a will and its estate. If the deceased was influence by fear or force, there may be undue influence. It must be shown that the influencer overpowered the deceased’s own mind.
In order for the testator to have testamentary capacity, the testator must understand the will disposes all assets upon death, have knowledge of the assets to be disposed of and must be free of mental disorders, such as dementia and delusions. If there is fraud or a mistake in drafting the will, the whole will or parts of it may be deemed invalid. The new WESA give the court wide powers to rectify a mistake in a will. The court can delete or insert words that were omitted or inserted in error. For a will to be valid, it must in writing, signed by the testator in the presence of two witnesses and the testator must be 19 years old or older. If these conditions aren’t met, the court may deem a will invalid based on invalid execution.