THE WILL

From Executor Guide for British Columbia
Revision as of 22:01, 29 May 2015 by Skunkworks (talk | contribs) (Witnesses and Signatures)

Jump to: navigation, search

Valid Wills

If there is a will, first of all, make sure that it is that last will. If you have not already done so, conduct a wills search.

When you are sure that this is the last will of the will-maker, make sure that it is valid. There are several ways in which a will might be invalid:

  • it might not have been properly witnessed or signed;
  • the will-maker might not have had the legal capacity to make a will; or
  • the will-maker might have been under duress or subject to undue influence.

Witnesses and Signatures

WESA says that a will must be signed at the end by the will-maker in the presence of at least two witnesses, who then sign the will in the presence of the will-maker:

37 (1) To be valid, a will must be

(a) in writing, (b) signed at its end by the will-maker, or the signature at the end must be acknowledged by the will-maker as his or hers, in the presence of 2 or more witnesses present at the same time, and (c) signed by 2 or more of the witnesses in the presence of the will-maker.

37 (1) To be valid, a will must be (a) in writing,

(b) signed at its end by the will-maker, or the signature at the end must be acknowledged by the will-maker as his or hers, in the presence of 2 or more witnesses present at the same time, and (c) signed by 2 or more of the witnesses in the presence of the will-maker.

A will made by a member of the armed forces on active duty can be valid without being witnessed (WESA, s. 38). If the will is signed by the will-maker but then additional testamentary gifts or instructions come below the signature, or were added after the will was signed, those additional instructions are invalid, but the will may otherwise be valid (WESA, s. 39).

Signature Irregularities

If there is an irregularity in how the will was signed or witnessed, a court might cure the defect[1] and declare the will to be still valid.

If there is no attestation clause, the Probate Rules[2] describe how it may be possible to avoid having to prove the will in solemn form before a court by filing an affidavit of one of the witnesses, or an affidavit of someone with personal knowledge of the will-maker’s intentions.

Capacity

A will can be valid in BC if the will-maker is at least 16[3] years old and is mentally capable of making a will. Wills made by members of the armed forces on active service can be valid regardless of the age[4] of the will-maker.

WESA, s. 36, says,

  1. A person who is 16 years of age or older and who is mentally capable of doing so may make a will.
  2. A will made by a person under 16 years of age is not valid.

Determining whether the will-maker had the mental capacity[5] to make a will is a legal test found in case law. The test is generally whether then person making the will understands the nature of the act and its effects, and is generally of sound mind and not subject to delusion. In other words, does the will-maker understand that he or she is making a will, and is the will-maker able to decide rationally how to distribute the assets.

There may be other relevant tests for capacity that apply in particular circumstances.

For example, an application for division of pension entitlement under the Canada Pension Plan[6] may fail if the applicant was incapable of forming or expressing the intention[7] to divide the pension.

If the executor lacks the mental capacity to manage the estate, the court would look to appointing another executor.

If the named executor has a legal committee appointed to manage his or her affairs, the court might appoint that person or entity to be executor, or the court might appoint another person entirely.

Duress or Undue Influence

A will, or a provision in a will that makes a gift, may be invalid if the will-maker was dominated by or dependent upon another person who persuaded the will-maker to make the gift. Click here for more.

Where a beneficiary could dominate or exert undue influence over a will-maker, and a gift to that person in the will is challenged in court, WESA[8] says that the beneficiary must show that will-maker was not unduly influenced to make the gift.

It used to be that people who witnessed a will could not also be beneficiaries. The concern is that witnesses may be in a position to exercise undue influence or duress over the will-maker. Under WESA,[9] witnesses may be able to inherit if they are able to show the court that the will-maker was not improperly influenced in making the gift.

Probate

Probate is the process where a court rules that a will is valid. When the court approves the will and the executor named in the will, the court issues a grant of probate.

Typically the executor obtains notarized copies of that grant to show to banks and other account holders so that the accounts and assets can be accessed by or transferred to the executor.

If you want to try to handle this yourself, Section 4.2.1 describes the process for proving a will in common form and the forms you will need to complete and file. For most estates this can be complicated enough, and the risk of making a mistake big enough, that you will want to get a lawyer’s help (see Section 4.4 ).

Proof in Common Form

If the will appears to be valid and no one challenges it, you may take these steps to apply to prove the will in common form.

Steps to Prove a Will in Common Form

(1) A wills search – contact the Vital Statistics Agency to confirm that they have not received any notice of a will later than the one that names you as executor.
(2) Notice of Proposed Application in Relation to Estate[10] – complete Form P1, which is notice of the proposed application for the estate grant, and mail or deliver it at least 21 days before submitting the documents to the court for filing.
Deliver it with a copy of the will to each person named as executor or alternate executor, each beneficiary in the will, each person who is entitled to apply under the wills variation provisions[11] of the Wills, Estates and Succession Act (WESA), and to each person who would be entitled to a share in the estate if there had been no will.
If any person entitled to notice is under age 19, notice must be sent to that person’s parents or legal guardians and, for certain minors, also to the Public Guardian and Trustee.
In the case of a person who is (or may be) mentally disordered, notice must be sent to that person’s committee, and if there is no committee, to that person directly, and notice must also be given to the Public Guardian and Trustee.
A lawyer could assist you in completing Form P1 and delivering it.
(3) Submission for Estate Grant[12] – this form (Form P2) gives details about the parties. It also describes the documents that are filed in support of your application for a grant of probate. (Form P2 Parties: Confirm whether the definition of “ spouse” applies, whether there are any children, and whether parties are members of the Nisga’a or any treaty nation.)
(4) Affidavit of Applicant for Grant of Probate[13] – this affidavit (in Form P3) identifies you and your relationship to the deceased. Use this form to confirm, among other things, that you have made a careful search for a later will and found none. Use Form P4 if there are irregularities with the will.
(5) Affidavit of Delivery[14] – this affidavit (in Form P9) sets out the names of each person to whom notice has been mailed or delivered as required by law (as outlined in paragraph (2) above).
(6) Affidavit of Assets and Liabilities for Domiciled Estate Grant[15] – this form (Form P10) sets out all the will-maker’s assets that pass to you under the will, wherever these assets are located. Certain liabilities must also be disclosed.

Completing Form P1

Notice of a Proposed Application in Relation to an Estate must include

  • the deceased’s name, last address and date of death
  • the name and mailing address of applicant, and address of service
  • if the applicant is an individual, the city and country where the applicant lives
  • the nature and type of grant sought
  • the location of the registry where the documents are filed
  • notice to the recipient that he or she may have specific rights or claims:
    • a right to oppose the application or resealing
    • a claim under the Family Law Act or WESA (subject to time limits)
    • a right to seek independent legal advice about this application
    • a right to seek security if the application is for a grant of administration (unless the Public Guardian and Trustee is the applicant)
    • if authorization for estate information issued, can apply for probate without further notice/resealing
    • a right to receive an accounting from the executor or administrator on distribution of the estate
  • notice to the recipient that the grant being applied for may be approved 21 days after delivery of this notice, and that delivery is made on the date it was mailed by post (if it is delivered electronically, delivery must be acknowledged in writing)

Applying for a Probate Grant in Form P3

To use this form you must fit these criteria (from WESA , Part 6, and Rule 25-3(6)):

  • you are named as executor, or alternate executor, or there is no executor able to act and you are a person permitted under WESA, s. 131 to apply for letters of administration with will annexed
    • WESA, s. 131 gives first priority to a beneficiary who has the consent of the other beneficiaries to act, but if there is no such consent, then
    • any beneficiary may be appointed, and if there are none, then
    • the court may appoint another person who is suitable
  • you have made a diligent search for another will in all reasonable places, including where the will-maker kept documents, and no more recent will has been found
  • you believe that this is the will-maker’s last will dealing with property in BC
  • the will complies with the formalities for making a will:
    • the will-maker had the capacity to make a will and was at least 16 years of age, and
    • the will is signed at its end and witnessed by two people at least 19 years old
  • you searched for a wills notice showing no later will (or no will registered)
  • the will is not a military will
  • you are not aware of any problem with how the will was executed
  • you are not aware of any interlineations, erasures, or alterations to the will
  • the documents referred to in the will are attached to the will
  • you are not aware of any other grant of probate for this estate in BC or any other jurisdiction
  • service to the Public Guardian and Trustee is not required:
    • service to the PGT may be required if as executor you will be required to serve a minor or a person who has been declared mentally incompetent
    • service to the PGT on behalf of a minor is not required if the applicant is the executor and the will creates a testamentary trust for that minor

After you file the form you must serve it on specific people:

  • all other named or alternate executors
  • beneficiaries, including possible intestate successors
  • Nisga’a government or treaty First Nations, if the will-maker was a member
  • citators, who are people who have filed a citation demanding that you seek probate, if there are any

If you and the will-maker were spouses, you must confirm that your appointment and any gifts you may receive are not revoked by WESA, s. 56(2):

  • if the will-maker and a spouse ceased to be spouses, and didn’t reconcile between when the will was made and the will-maker died,
  • then any gift to or appointment of the spouse as executor is revoked, and such gift is treated as if the spouse pre-deceased the will-maker, unless the will expressly declares a contrary intention.

Applying for a Probate Grant in Form P4

Use Form P4[16] if any of the following apply:

  • there are interlineations or erasures,
  • there are problems with the witnesses or signatures,
  • there may be missing pages or missing codicils,
  • there are issues as to whether the will-maker could read or understand the will, or
  • it is a military will.

Proof in Solemn Form

If the will appears to have irregularities or problems with validity, or if someone is challenging the will or raising a dispute, the will may need to be proved in solemn form.[17] That means the court will have to hear the facts and interpret the will-maker’s intention and the terms of the will. You should have legal advice in a case like that.

Even where you might be able to provide affidavits to clarify the will-maker’s intention, it may be more prudent to have a court prove the will in solemn form, to avoid challenges later.

Challenges to a Will

If a person says there is a further testamentary document that doesn’t have the formalities of a will, the court might be asked to interpret the will-maker’s intention and cure the defects in that document. Or a person might claim that the will contains an error so that the court must interpret and possibly rectify that error.

To prove a will in solemn form, you may need to start a new proceeding by petition, and you may need to come to court. The procedure is set out in Rule 25-14(4).

Proceeding for proof of a will in solemn form

(4) To apply to the court for an order proving a will in solemn form, a person (a) may, if there is an existing proceeding within which, under these Supreme Court Civil Rules, it is appropriate to seek that order, apply for that order by notice of application in that proceeding, or (b) must, if there is no existing proceeding within which it is appropriate to seek that order, start a proceeding by petition under Rule 16-1 and seek the order within that proceeding.

No Probate Required in Some Cases

Estates with some types of assets don’t require probate, just the death certificate. These include estates where the assets pass outside the will, and small estates where the assets amount to less than $25,000.

Real estate owned in joint tenancy with another person doesn’t require probate. If the deceased person owned land or a house in joint tenancy with another person, transfer the land to the other joint tenant simply by filing an application in the Land Title Office[18] (include the death certificate). You need to go to the Land Title Office that handles the property in question.

Other assets that are owned jointly, such as bank accounts or vehicles, can also be transferred to the other joint owner without probate. Apply to the bank, or the registry where the asset ownership is registered, to transfer the ownership to the remaining joint owner. You will need the death certificate.

Some assets, such as workplace benefit plans, TFSAs, RRSPs, and life insurance, allow the owner to designate a beneficiary. These assets can pass to the beneficiary without probate. The plan administrator or the financial institution holding the assets will need to see the death certificate.

Court Direction on Distribution of Assets

If the executor believes there are no unknown creditors or beneficiaries, and that no claims may be made against the estate, the executor might seek direction of the court under the Trustee Act to distribute assets. (As a caution, this would not protect the executor from personal liability if new creditors or beneficiaries were to emerge).

Distribution of estate under direction of court

39 (1) A trustee, executor or administrator may, without commencing any other proceeding, apply by petition to the court for an order that
(a) the trustee, executor or administrator be at liberty to distribute the proceeds of the estate he or she is administering among the parties entitled to them, having regard only to the claims of the persons the trustee, executor or administrator has been able to ascertain to be entitled and whose residence or address he or she has been able to find out, and
(b) the trustee, executor or administrator is not be liable for the proceeds of the estate or assets, or any part of them, so distributed to persons of whose claim and residence or address the trustee did not have notice at the time of the distribution.
(2) On an application made under subsection (1), the court may give directions with regard to the time for distribution and the notice that must be given to bring the fact of distribution to the notice of persons who may possibly be interested in the distribution.
(3) This section does not prejudice the right of any creditor or claimant to follow the proceeds of the trust estate or assets, as the case may be, or any part of them, into the hands of the person or persons who may have received them.

Working With a Lawyer on the Probate Application

Applying for a grant of probate involves filing all documents that would answer key questions:

  • was a will search done?
  • is the applicant the rightful executor?
  • has an inventory been made of assets and liabilities?
  • has a careful search been made for beneficiaries and people who may have rights to inherit?

If you want to gather and file this material yourself, keep in mind that the documents required for an estate grant will need to be filed in the court using specific forms. Here is a link to the Probate Forms.[19]

Even simple estates can be complicated enough that a lawyer’s help will be needed. You can help the lawyer by gathering the following information to prepare the estate grant application documents:

(a) Make an inventory of all the deceased’s assets and liabilities. Try to provide exact values as at the date of death, but approximate values may be enough. If you can’t make a list, provide the lawyer with copies of recent bank statements, property assessments, share certificates, appraisal reports, credit card statements, and other statements of income, assets, and debts. If you can’t gather those statements yourself, the lawyer may ask you to sign an authorization so the lawyer can gather that information directly from the financial institutions on your behalf.

(b) List each beneficiary named in the will, including his or her full name, address, and relationship to the will-maker.

(c) List any spouses that the deceased had ever married or lived with in a marriage-like relationship. For each, provide the full legal name, address, and details about the date of marriage or cohabitation, the date of divorce or separation, and whether there is any agreement between the spouses dividing their assets.

(d) List all the deceased’s children, whether they were born inside or outside of marriage, are stepchildren, or were adopted by the will-maker. Provide each child’s full legal name and address. If any child is under 19 years of age, include that child’s birth date and the name of that child’s parents and/or legal guardians (if only one parent or guardian is responsible for that child, only that parent’s name is required).

(e) List more distant relatives (other than people you have already listed) who you think might have been entitled to a share in the estate if there were no will. For example, if the deceased had no surviving spouse, you might list all children, grandchildren, or parents; if the deceased had none of those, you might list the deceased’s brothers, sisters, nieces, nephews, aunts and uncles.

The lawyer will use this information to prepare the forms, and then you sign those forms and take them to the court registry to be filed. One of the forms is an affidavit where you swear that you have made a complete search and know of no other assets or debts.

The steps that must be taken to prepare these documents can take several weeks, depending on such factors as the nature of the assets, and how quickly the financial institutions respond to requests for information. Financial institutions can sometimes take several weeks to respond. 

Documents Required for an Estate Grant

Generally, documents relating to the will, the search for the will, the appointment of executor, affidavits of assets and liabilities, and any orders relating to those things in this or any other jurisdiction must be filed in an application for an estate grant.

Form P2 will be required, as will Form P3 or P4. Depending on the circumstances, various other forms may also be required.

Rule 25-2 describes who must be given advance notice of the application in Form P1. Notice must be delivered 21 days before the date of the application. Generally, these people must be given notice:

  • all the people who are named as executors or would have had a right to be executors;
  • all the people who are named as beneficiaries or who would have had claims as beneficiaries if the will-maker had died intestate;

Rule 25-3 sets out the documents to file:

Documents to be filed in an application

(2) A person wishing to apply for an estate grant must, after delivering in accordance with Rule 25-2 the documents that were required to be delivered under that rule, file the following documents:
(a) a submission for estate grant in Form P2;
(b) an affidavit from the applicant, or, if there are 2 or more applicants, from at least one of the applicants, as follows: (i) if the application is for a grant of probate or a grant of administration with will annexed,
(A) in Form P3 if subrule (6) of this rule applies, or
(B) in Form P4 if subrule (6) of this rule does not apply;
(ii) if the application is for a grant of administration without will annexed, in Form P5;
(iii) if the application is for an ancillary grant of probate or an ancillary grant of administration with will annexed, in Form P6;
(iv) if the application is for an ancillary grant of administration without will annexed, in Form P7;
(c) if there are 2 or more applicants, an affidavit in Form P8 from each of the applicants who has not sworn an affidavit referred to in paragraph (b);
(d) two copies of a certificate from the chief executive officer under the Vital Statistics Act indicating the results of a search for a wills notice filed by or on behalf of the deceased;
(e) any affidavit or material required by any of subrules (15) to (24) of this rule;
(f) one or more affidavits, in Form P9, that, collectively, confirm that the documents referred to in Rule 25-2 were delivered to all of the persons to whom, under that rule, the documents were required to be delivered;
(g) in accordance with subrule (7) of this rule, from the applicant, or, if there is more than one applicant, from at least one of the applicants, an affidavit of assets and liabilities, which affidavit must be
(i) subject to subparagraph (ii) of this paragraph, an affidavit of assets and liabilities for domiciled estate grant in Form P10, or (ii) if subrule (8) applies, an affidavit of assets and liabilities for domiciled estate grant in Form P10 or an affidavit of assets and liabilities for non-domiciled estate grant in Form P11;
(h) in accordance with subrule (10), for each of the documents that are filed with the submission for estate grant and that are not written in the English language, an affidavit of translator in Form P12;
(i) if one or more of the executors has renounced executorship, whichever of the following that applies: (i) if the executor has provided to the applicant a notice of renunciation in Form P17, that notice of renunciation; (ii) if the executor is deemed under Rule 25-11 to have renounced executorship, an affidavit of deemed renunciation in Form P34 prepared by the citor under Rule 25-11 (7) and any supporting affidavits of service;
(j) any document required under subrule (3).

Filing of wills

(3)Subject to subrule (5), the person wishing to apply for an estate grant must file with the documents referred to in subrule (2) (a) to (j) the following:
(a) if the application will be for a grant of probate or a grant of administration with will annexed,
(i) the originally signed version of the will, if that original exists or, if that original does not exist, a copy of the will, and
(ii) if an order has been made that affects the validity or content of the will and that order has not yet been filed in the proceeding within which the estate grant is being sought, a copy of that order;
(b) if a grant of probate or equivalent, or a grant of administration with will annexed or equivalent, was issued in a jurisdiction that has not been prescribed for the purposes of section 138 of the Wills, Estates and Succession Act and the application under this Part will be for an ancillary grant of probate or an ancillary grant of administration with will annexed, the following:
(i) a copy of the foreign grant that has been certified by the issuing court;
(ii) if the will is not attached to the foreign grant, a copy of the will that has been certified by the issuing court;
(c) if a grant of administration without will annexed, or equivalent, was issued in a jurisdiction that has not been prescribed for the purposes of section 138 of the Wills, Estates and Succession Act and the application will be for an ancillary grant of administration without will annexed, a copy of the foreign grant certified by the court out of which the grant of administration without will annexed, or equivalent, was issued.

After the grant application is sworn, file the application with the Probate Registry in the local courthouse. At that time a Court will charge a filing fee (currently $200, unless the estate has a value of less than $25,000, in which case there is no fee payable).

The time frame for the Probate Registry to review and approve probate applications can vary considerably, but generally the review process takes approximately two to three months.

Once the application is reviewed, the Probate Registry will assess the probate fees[20] that are payable. These fees are based on the gross value of the estate assets that were located in British Columbia when the deceased died.

$0 to $25,000 $0
$25,000 to $50,000 $6 for every $1,000 (or part of $1,000), i.e., $150
$50,000 or more $14 for every $1,000 (or part of $1,000)

For example, if the gross value of an estate is $125,000, the probates fee will be $1,200, which is in addition to the court filing fee of $200.

Please note that intangible assets, such as bank accounts and investments, are generally deemed to be “within” British Columbia (even if the branch location is outside of British Columbia), and therefore are subject to probate fees.

4.5 After Receiving a Grant of Probate

Once you are granted probate, there are various things you can or must do. You can arrange to move the estate assets into your name, as executor. You must settle the deceased’s debts and any expenses that you incur in the course of administering the estate. You can convert assets into cash, if you think this is appropriate.

You must keep track of the things you do. For your convenience, here is a sample Post-Grant Worksheet.  

4.5.1 Post-Grant Worksheet

Post-Grant.png

4.6 Resources

4.6.1 Online Resources

4.6.2 Legislation

  • Canada Pension Plan
  • Escheat Act, R.S.B.C. 1996, c. 120
  • Family Law Act,[24] S.B.C. 2011, c. 25
  • Legal Profession Act, S.B.C. 1998, c. 9
  • Probate Fee Act,[25] S.B.C. 1999, c. 4
  • Public Guardian and Trustee Act, R.S.B.C. 1996, c. 383
  • Trustee Act, R.S.B.C. 1996, c. 464
  • Wills, Estates and Succession Act, S.B.C. 2009, c. 13 (“WESA”)

4.6.2.1 Regulations and Forms

References

  1. WESA, s. 37(2) [1]
  2. Supreme Court Civil Rules, Rules 25-3(15) and 25-3(16) [2]
  3. WESA, s. 36; [full Text: http://canlii.ca/t/8mhj]
  4. WESA, s. 38 [Full Text: http://canlii.ca/t/8mhj]
  5. For a discussion of case law on capacity, including capacity to make a will, see the 2013 British Columbia Law Institute paper, Report on Common-Law Tests of Capacity. [Link: http://www.bcli.org/wordpress/wp-content/uploads/2013/09/2013-09-24_BCLI_Report_on_Common-Law_Tests_of_Capacity_FINAL.pdf]
  6. Canada Pension Plan, R.S.C. 1985, c. C-8 [3].
  7. Canada Pension Plan, s. 55.3
  8. WESA, s. 52 [full text: http://canlii.ca/t/8mhj].
  9. WESA, ss. 40 and 43 [full text: http://canlii.ca/t/8mhj].
  10. www.canlii.org [4]
  11. Part 4, Division 6 of WESA, ss. 60-72 [full text: http://canlii.ca/t/8mhj]
  12. www.canlii.org [5]
  13. www.canlii.org [6]
  14. www.canlii.org [7]
  15. www.canlii.org [8]
  16. www.canlii.org [9]
  17. www.bcheritagelaw.com [10]
  18. www.ltsa.ca [11]
  19. www.ag.gov.bc.ca [12]
  20. Supreme Court Civil Rules, BC Reg. 168/2009, Appendix C [13]
  21. www.bcli.org [14]
  22. www.bcheritagelaw.com [15]
  23. www.ltsa.ca [16]
  24. www.canlii.ca [17]
  25. www.canlii.ca [18]
  26. www.canlii.ca [19]
  27. www.canlii.ca [20]