The New Wills And Succession Act: How Does It Affect You?

The Wills and Succession Act (the “WSA”) is the law in Alberta as of February 1, 2012. By repealing and replacing a number of statutes that deal with inheritance laws into one Act, the WSA has significant impact on all wills and estate plans in the province of Alberta.

Wills

A marriage will no longer revoke a will. The signing of an Adult Interdependent Partner (“AIP”) agreement will no longer revoke a will, either. Instead, a divorce after February 1, 2012 will revoke a gift that is left to the ex-spouse in the will, unless there is a contrary intention in the will. A divorce after February 1, 2012 will also act to revoke any appointments of the ex-spouse as an executor, trustee or guardian of a minor child, unless there is a contrary intention in the will.

Similarly, a former AIP will not be entitled to gifts left to the former AIP in the will, unless there is a contrary intention in the will. The appointment of the former AIP as an executor, trustee or guardian of a minor child will also be revoked, unless there is a contrary intention in the will.

Under the previous legislation, a gift to a beneficiary in a will was void if a beneficiary, or their spouse or their AIP, acted as a witness to the will. Under the WSA, the beneficiary can now apply to the Court to have his or her gift validated, if it can be demonstrated that the witness did not unduly influence the testator.

There are new powers granted to the Court under the WSA, allowing the Court to correct or validate wills. These provisions apply only if the death of the testator occurs after February 1, 2012.

Intestacy

If a person dies intestate (without a will), leaving both a spouse or AIP, and children of the relationship with that spouse or AIP, everything goes to the spouse or AIP, instead of being shared between the spouse or AIP and children. This allows the spouse or AIP to distribute the estate according to the deceased’s intent and their presumably shared family values.

If a person dies intestate leaving children of more than one relationship, a preferential share will be given to the spouse or AIP, with the remainder to the children. The amount of the preferential share is the greater of 50% of the net value of the intestate person’s estate, or $150,000.00. If there is both a spouse and an AIP at the time of the intestate person’s death, then they will split the preferential share between them, and the children will inherit the balance.

If a person dies intestate leaving no spouse, AIP or children, there is a change from the previous consanguineous system to a new parentelic system, which means that the intestate person’s estate will no longer be distributed to his or her closest blood relatives, no matter how distant.

Dependants Relief Claims

Previously, under the Dependants Relief Act, a spouse, AIP, minor child or adult child who is unable by reason of physical or mental disability to earn a livelihood, was entitled to make a claim for a greater share of the estate if the deceased did not adequately provide for the dependent in his or her will. This claim is now referred to as a claim for “family maintenance and support,” and the law is broadened under the WSA to add two new categories of dependants: (1) adult children under the age of 22 who are in full-time attendance at school, if the deceased was supporting the child at the time of death; and (2) a minor grandchild or great-grandchild of the deceased, if the deceased was standing in the place of that child’s parent when the deceased passed away.

Temporary Possession of Matrimonial Home

A surviving spouse or an AIP will have the temporary right to possession of the family home for 90 days after the date of death, even though the home might be owned by another person or be rented. This would include a residence owned in joint tenancy with the deceased and another person.

Advances

If it is alleged that the deceased transferred property during his or her lifetime to a beneficiary of his or her estate, an application may now be brought under the WSA to have that property repaid from that beneficiary’s share of the estate. In other words, the application alleges that the transfer of property was intended by the deceased to be an advance against, or otherwise repayable from, the beneficiary’s share of the estate.

Survivorship

Previously, if two people died in a common accident and it could not be determined who died first, the law was that the younger person was deemed to have survived the older. The WSA now provides that in such a circumstance, each person will be deemed to have predeceased the other. In addition, any property held in joint tenancy between the people will be deemed to have been severed into a tenancy in common, so that the property will be divided between the estates of the two owners.

Matrimonial Property Claims

Section 117 was to amend the Matrimonial Property Act, the provisions of which relate to matrimonial property on death. However, there is now a delay in the proclamation of section 117 of the WSA, pending further consultation with members of the bar and the public.

These provisions would permit a surviving spouse to make a claim for his or her share of the matrimonial property from the deceased spouse’s estate. Previously, only divorcing or separated spouses could make such a claim against the deceased’s estate. These provisions are controversial because under the WSA, a surviving spouse would also be entitled to receive all property given to him or her under the will of the deceased spouse, in addition to his or her claim for matrimonial property. It would be critical to review your estate plan if section 117 of the WSA is proclaimed in force without amendments in the future if you have not left your entire estate to your spouse, and if it is your intention that a portion of your estate pass to your children or other people, particularly an interest in a family business or a family farm.

Summary

While in many ways, the WSA contains provisions modernizing wills and estates law, it is recommended that you have your will and estate plan reviewed in light of this change in the law.

By Anthea Law | Direct Line: (403) 692-5208 | e-mail: alaw@vogellawyers.com

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