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2008 Legislative Session: 4th Session, 38th Parliament

FIRST READING

The following electronic version is for informational purposes only.

The printed version remains the official version.

HONOURABLE WALLY OPPAL

ATTORNEY GENERAL AND MINISTER

RESPONSIBLE FOR MULTICULTURALISM

BILL 28 – 2008

WILLS, ESTATES AND SUCCESSION ACT

This Bill repeals and replaces 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. 1996, c. 490. The new Wills, Estates and Succession Act is modelled on a report prepared by the members of the Succession Law Reform Project of the British Columbia Law Institute, and includes a new administrative process for small estates.

Contents

Section

Part 1 –

Definitions and

Interpretation

Definitions and

interpretation

Part 2 – Fundamental Rules

Division 1 – Meaning of Spouse, Effect of Adoption and Construction of Instruments

When a person is a spouse under this Act

Effect of adoption

Construction of instruments

Division 2 – Survivorship Rules

Fundamental rule – when persons die simultaneously

General presumption – disposition of property on simultaneous deaths

General presumption – substitute personal representative

Posthumous births

Survival of beneficiaries

Five-day survival rule

Priority of Insurance Act provisions

Division 3 – First Nations' Final Agreements

Definitions

Will or cultural property of Nis g a'a citizens

Will or cultural property of treaty first nation members

Notice of application for representation grant respecting Nis g a'a citizens and treaty first nation members

Service on Nis g a'a Lisims Government or treaty first nation

Nis g a'a citizen leaving small estate

Treaty first nation member leaving small estate

Part 3 – When a Person Dies Without a Will

Uniform

interpretation with laws of other provinces

Division 1 – Distribution of Estate When There is No Will

Spouse but no descendants

Spouse and descendants

Distribution if 2 or more spouses

No spouse but intestate leaving descendants or relatives

Distribution to descendants

Partial intestacy

Division 2 – Spousal Home

Right to spousal home

Notice by personal representative

Prohibition on disposing of spousal home

Notice exercising right to spousal home

Dispute over value of deceased person's interest

Purchase of spousal home by surviving spouse

Occupancy costs of spousal home

Retention of spousal home

Registrable charges

Circumstances when registrable charge becomes payable

Part 4 – Wills

Division 1 – Making a Will

Who can make a will

How to make a valid will

Will by members of military forces

Clarification of doubt about signature placement

Witnesses to wills

Division 2 – Legal Effect of a Will

Property that can be gifted by will

Meaning of particular words in a will

Gifts to witnesses

Residue of estate

Gift of land contemplating division

When gifts cannot take effect

Property encumbered by security interest

Relief from disposition of property

Will exercising a power of appointment

Rules if assets are not sufficient

Gifts of unowned property

Undue influence

Division 3 – Abrogation of Common Law Rules

Common law presumptions abrogated

Division 4 – Altering, Revoking and Reviving Wills

How to alter a will

How to revoke a will

Revocation of gifts

Revival of a will

Division 5 – Curing Deficiencies and Rectification of Wills

Court order curing deficiencies

Rectification of a will

Division 6 – Variation of Wills

Maintenance from estate

Time limit and service

Evidence

Court may make order subject to conditions

Lump sum or periodic payments or trust

Payments fall rateably on estate

Power to suspend administration and exempt from order

Power of court to allow commutation

Effect of order

Registration of title

Mortgage in anticipation of order invalid

Court may cancel or vary order

Appeal to Court of Appeal

Division 7 – Registration of Notice of Will

Filing of notice of will

Filing of notice of revocation

Filing notice of change of place of will

Chief executive officer's records

Search of records

Validity of will or revocation not affected

Division 8 – Conflict of Laws

Interpretation

Validity of wills made in accordance with other laws

Resort to other aids to construction

Interest in an immovable

Division 9 – Adoption of Convention Providing a Uniform Law on the Form of an International Will

Convention adopted

Part 5 – Benefit Plans

Application of Part

Division 1 – Designation Requirements

Designated beneficiaries

Several designated beneficiaries

Irrevocable designations

Effect of irrevocable designation

Division 2 – Other Benefit Plan Provisions

When designations may not be changed

Maintaining previous designations

Designated beneficiary dying before participant

Trustee for designated beneficiary

Enforcing payment of benefit

Benefit plan administrator discharged of liability

Benefit not part of estate

Division 3 – Designated Beneficiaries in a Will

Alteration or revocation of designation in will

Designation in will

Effect of designation in purported wills

Effect of revival of will on designation

Effective date of designation and revocation

Part 6 – Administration of Estates

Division 1 – Application of this Part and Vesting of Property

Application

Vesting of property on death

Administration pending legal proceedings

Renunciation of executorship

Forfeiture of executorship

Opposition to issue of representation grant

Executor not joining an application

Requirement to accept executorship or to explain

Division 2 – Small Estate Administration

Small estate – leaving a will

Small estate – no will

No security

Prohibitions on filing small estate declaration

Effect of filing small estate declaration

Supplementary declaration

Termination of authority if small estate value exceeded

Termination by court

Protecting good faith administration

Declarant's accounts

Offence and penalty

Civil remedies preserved

Division 3 – Application for Grant of Probate or Administration

Notice of proposed application for grant of probate or administration

Application for probate or administration – disclosure

Production of documents and property

Opportunity for Public Guardian and Trustee to comment

Direction by Public Guardian and Trustee – sealed applications

Public Guardian and Trustee to pay beneficiaries and intestate successors directly

Immunity for Public Guardian and Trustee

Security for administration of estates

Division 4 – Grant of Probate or Administration

Grant of probate or administration

Priority among applicants – intestate estate

Priority of applicants – administration with will annexed

Special circumstance

Administration of partial intestacy

Administration if sole executor a minor

Effective date of grant for intestate estate

Effect of representation grant

Reliance on representation grant

Division 5 – Foreign Personal Representatives, Resealing Foreign Grant and Ancillary Grant

Resealing foreign grant and ancillary grants

Limited grant to attorney of foreign personal representative

Curing deficiencies in foreign wills

Division 6 – Revocation of Grant of Probate or Administration

Revocation of grant of probate or administration

Division 7 – Personal Representatives – Powers, Duties and Liabilities

Personal representatives – general authority

Application of Trustee Act to personal representatives

Abolition of rule in Allhusen v. Whittel

Executor of deceased executor

Limitation period for disputed claims against estate

When beneficiary cannot be found or does not claim gift

Disposition by executors who do not renounce or join application for probate

Division 8 – Personal Representatives – Legal Liability and Legal Proceedings

Liability of personal representatives

Proceedings by and against estate

Beneficiary or intestate successor may sue with leave of court

Personal representative relief from liability under contract

Distribution of minor's interest

Notice to creditors

Distribution of estate

Personal representative deemed to be trustee

Division 9 – Discharge, Removal and Substitution of Personal Representatives

Personal representative may apply to be discharged

Application to remove or pass over personal representative

Appointment of substitute personal representative

Vesting of estate in personal representative

Former personal representative to facilitate property and document transfer

Division 10 – Devolution of Land

Devolution and administration of land

Transfer of land to beneficiary may be subject to a charge

Division 11 – Public Guardian and Trustee

Application for grant of probate or administration by Public Guardian and Trustee

Court appointment with consent of Public Guardian and Trustee

Powers of Public Guardian and Trustee

Powers before grant issued

Probate or administration despite pervious grant

Division 12 – Insolvent Estates

Definitions

How proceeds from insolvent estate are to be spent

Provable debts

Conditional, contingent and unliquidated claims

Secured creditors

Debts contracted individually and on behalf of partnership

Division 13 – Deceased Worker's Wages

Definition

Wages payable to surviving spouse

Wages not subject to administration

Evidence of entitlement

Discharge of employer

Application to court to determine competing claims

Division 14 – Other Matters and Regulations

Representation of mentally incapable person

Notices to minor

Opening safety deposit boxes

Power to make regulations

Part 7 – Transitional Provisions, Repeals and Consequential and Related Amendments

Division 1 – Transitional Provisions

Transitional – application of Parts 2, 3 and 6

Transitional – application of

Part 4

Transitional – application of

Part 5

Transitional – Estate Administration Act

Transitional – property encumbered by security interest

Transitional – direction by court

Division 2 – Repeals

191-194

Repeals

Division 3 – Consequential and Related Amendments

195-274

Consequential and Related Amendments

Repeal of consequential amendments that may become inoperative

Commencement

Schedule 1

Schedule 2

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:

Part 1 –

Definitions and

Interpretation

Definitions and

interpretation

(1) In this Act:

"beneficiary" means

(

a) a person named in a will to receive all or part of an estate, or

(

b) a person having a beneficial interest in a trust created by a will;

"benefit" means a benefit payable under a benefit plan on the death of a participant;

"benefit plan" means

(

a) any one or more of the following for the benefit of employees or former employees of an employer, agents or former agents of an employer, the dependants of any of them or a designated beneficiary:

(

i) a pension plan or retirement plan;

(ii) a welfare fund or profit-sharing fund;

(iii) a trust, scheme, contract or arrangement,

(

b) a fund, trust, scheme, contract or arrangement for the payment of an annuity for life or for a fixed or variable term,

(

c) a retirement savings plan or retirement income fund registered under the Income Tax Act (Canada), or

(

d) a fund, trust, scheme, contract or arrangement described in the regulations made under this Act,

whether it was created before, on or after this definition comes into force;

"chief executive officer" means the chief executive officer under the Vital Statistics Act ;

"court" means the Supreme Court;

"declarant" means a person who makes a small estate declaration;

"descendant" means all lineal descendants through all generations;

"designated beneficiary" means a person to whom or for whose advantage a benefit is payable by a designation;

"designation" means the designation of a designated beneficiary in accordance with

section 85 [designated beneficiaries] ;

"estate" means the property of a deceased person;

"foreign grant" means probate, including letters of verification issued in Quebec, or a grant of administration or other document purporting to be of the same nature issued by a court outside British Columbia;

"foreign personal representative" means a personal representative to whom a foreign grant has been made;

"gift" includes

(

a) a beneficial devise or bequest, and

(

b) an appointment affecting property other than the appointment of a person as executor of the will;

"instrument" includes a testamentary instrument and other legal documents but does not include an instrument to which the Insurance Act applies except for a will;

"intestate" means a person who dies without a will;

"intestate estate" means the estate of a person who dies without a will;

"intestate successor" means a person who is entitled to receive all or part of an intestate estate;

"land" includes buildings and fixtures, and every right, title, interest, estate or claim to or in land;

"nominee" includes

(

a) a committee acting under the Patients Property Act ,

(

b) an attorney acting under an enduring power of attorney as described in

section 8 of the Power of Attorney Act , and

(

c) a representative acting under a representation agreement made under

(i)

section 7 (1) (

b) of the Representation Agreement Act , or

(ii)

section 9 (1) (

g) of the Representation Agreement Act ;

"participant" means a person who makes a designation and, except when the context otherwise requires, includes an attorney or representative who makes a designation under

section 85 [designated beneficiaries] ;

"personal property" means every kind of property other than land;

"probate" means a grant of probate;

"property" means land and personal property;

"registrable charge" means a charge created by an order of the court under

section 33 (2) [retention of spousal home] and made effective by registration in a land title office under

section 34 [registrable charges] ;

"representation grant" means

(

a) probate of a will in British Columbia, whether made for general, special or limited purposes,

(

b) the grant of administration of the estate of a deceased person in British Columbia, with or without will annexed, whether made for general, special or limited purposes,

(

c) the resealing in British Columbia of probate of a will or a grant of administration of the estate of a deceased person,

(

d) an ancillary grant of probate, or

(

e) a small estate declaration filed with a registrar of the court under Division 2 of

Part 6 [Administration of Estates] ;

"security interest" means an interest in property that secures payment or performance of an obligation;

"small estate" means an estate composed wholly of personal property of less than a prescribed value as of the date of death;

"small estate declaration" means a statutory declaration made in the prescribed form respecting a small estate;

"spousal home" means

(

a) a parcel of land that

(

i) is shown as a separate taxable parcel on a taxation roll for the current year prepared under the Taxation (Rural Area) Act or on an assessment roll used for the levying of taxes in a municipality, and

(ii) has as improvements situated on it a building assessed and taxed in the current year as an improvement, in which the deceased person and his or her spouse were ordinarily resident, owned or jointly owned by the deceased person, and not leased to another person,

(

b) a share owned or jointly owned by the deceased person in a corporation whose charter, as defined in

section 1 (1) of the Business Corporations Act , provides that a building owned or operated by the corporation must be owned and operated exclusively for the benefit of shareholders in the corporation who are occupants of the building, if the value of the share is equivalent to the capital value of a suite owned by the corporation, in which suite the deceased person and his or her spouse were ordinarily resident and which was not leased to any other person, or

(

c) a manufactured home, as defined in the Manufactured Home Act , situated on land not owned by the owner of the manufactured home and in which the deceased person and his or her spouse were ordinarily resident;

"spouse" has the meaning given to it in

section 2 [when a person is a spouse under this Act] ;

"testamentary instrument" means a will or designation or a document naming a person to receive a payment or series of payments on death under a plan or arrangement of a type similar to a benefit plan;

"will" means

(

a) a will,

(

b) a testament,

(

c) a codicil,

(

d) an appointment by will or by writing in the nature of a will in exercise of a power,

(

e) anything ordered to be effective as a will under

section 58 [court order curing deficiencies] , or

(

f) any other testamentary disposition except the following:

(

i) a designation under

Part 5 [Benefit Plans] ;

(ii) a designation of a beneficiary under

Part 3 [Life Insurance] or

Part 4 [Accident and Sickness Insurance] of the Insurance Act ;

(iii) a testamentary disposition governed specifically by another enactment or law of British Columbia or of another jurisdiction in or outside Canada;

"will-maker" means a person who makes a will;

"will-maker's signature" includes a signature made by another person in the manner described in subsection (2).

(2) A reference to the signature of a will-maker includes a signature made by another person in the will-maker's presence and by the will-maker's direction, and the signature may be either the will-maker's name or the name of the person signing.

(3) If there is any conflict or inconsistency between this Act and the Trustee Act with respect to the powers, duties, functions or office of a personal representative, this Act prevails to the extent of the conflict or inconsistency.

Part 2 – Fundamental Rules

Division 1 – Meaning of Spouse, Effect of Adoption and

Construction of Instruments

When a person is a spouse under this Act

(1) Unless subsection (2) applies, 2 persons are spouses of each other for the purposes of this Act if they were both alive immediately before a relevant time and

(

a) they were married to each other, or

(

b) they had lived with each other in a marriage-like relationship, including a marriage-like relationship between persons of the same gender, for at least 2 years.

(2) Two persons cease being spouses of each other for the purposes of this Act if,

(

a) in the case of a marriage,

(

i) they live separate and apart for at least 2 years with one or both of them having the intention, formed before or during that time, to live separate and apart permanently, or

(ii) an event occurs that causes an interest in family assets, as defined in

Part 5 of the Family Relations Act , to arise, or

(

b) in the case of a marriage-like relationship, one or both persons terminate the relationship.

(3) A relevant time for the purpose of subsection (1) is the date of death of one of the persons unless this Act specifies another time as the relevant time.

Effect of adoption

(1) Subject to this section, if the relationship of parent and child must be established at any generation in order to determine succession under this Act, the relationship is to be determined in accordance with the Adoption Act respecting the effect of adoption.

(2) Subject to subsection (3), if a child is adopted,

(

a) the child is not entitled to the estate of his or her natural parent except through the will of the natural parent, and

(

b) a natural parent of the child is not entitled to the estate of the child except through the will of the child.

(3) Adoption of a child by the spouse of a parent does not terminate the relationship of parent and child between the child and the parent for purposes of succession under this Act.

Construction of instruments

(1) If this Act provides that a provision of this Act is subject to a contrary intention appearing in an instrument, that contrary intention must appear in the instrument or arise from a necessary implication from the instrument.

(2) Extrinsic evidence of testamentary intent, including a statement made by the will-maker, is not admissible to assist in the construction of a testamentary instrument unless

(

a) a provision of the will is meaningless,

(

b) a provision of the testamentary instrument is ambiguous

(

i) on its face, or

(ii) in light of evidence, other than evidence of the will-maker's intention, demonstrating that the language used in the testamentary instrument is ambiguous having regard to surrounding circumstances, or

(

c) extrinsic evidence is expressly permitted by this Act.

Division 2 – Survivorship Rules

Fundamental rule – when persons die simultaneously

(1) If 2 or more persons die at the same time or in circumstances that make it uncertain which of them survived the other or others, unless a contrary intention appears in an instrument, rights to property must be determined as if each had survived the other or others.

(2) If

(

a) two or more persons hold property as joint tenants, or hold a joint account, and

(

b) both or all of them die at the same time or in circumstances that make it uncertain which of them survived the other or others,

unless a contrary intention appears in an instrument, for the purpose of determining rights to property, each person is deemed to have held the property or account as tenants in common with the other or with each of the others.

General presumption – disposition of property on simultaneous deaths

6 If

(

a) an instrument provides for the disposition of property in the event that a person named in the instrument

(

i) dies before another person,

(ii) dies at the same time as another person, or

(iii) dies in circumstances that make it uncertain which of them survived the other, and

(

b) the named person dies at the same time as the other person or in circumstances that make it uncertain which of them survived the other,

for the purpose of that disposition, the event for which the instrument provides is conclusively deemed to have occurred.

General presumption – substitute personal representative

7 If

(

a) a will provides for a substitute personal representative in the event that an executor named in the will

(

i) dies before the will-maker,

(ii) dies at the same time as the will-maker, or

(iii) dies in circumstances that make it uncertain which of them survived the other, and

(

b) the named executor dies at the same time as the will-maker or in circumstances that make it uncertain which of them survived the other,

for the purpose of probate or a small estate declaration, the event for which the will provides is conclusively deemed to have occurred.

Posthumous births

8 Descendants and relatives of an intestate, conceived before the intestate's death but born and living for at least 5 days afterwards, inherit as if they had been born in the lifetime of the intestate and had survived the intestate.

Survival of beneficiaries

(1) If

(

a) a right of a beneficiary to receive property is conditional on the beneficiary surviving another person, and

(

b) the beneficiary dies at the same time as the other person or dies in circumstances that make it uncertain which of them survived the other,

the beneficiary is conclusively deemed to have predeceased the other person.

(2) If

(

a) property is left to 2 or more beneficiaries or to the surviving beneficiary or beneficiaries, and

(

b) both or all die at the same time or in circumstances that make it uncertain which of them survived the other or others,

unless a contrary intention appears in the instrument, the property must be divided into as many equal shares as there are beneficiaries, and the shares must be distributed respectively to those persons who would have been entitled in the event that each of the beneficiaries had survived.

Five-day survival rule

(1) A person who does not survive a deceased person by 5 days, or a longer period provided in an instrument, is conclusively deemed to have died before the deceased person for all purposes affecting the estate of the deceased person or property of which the deceased person was competent to give by will to another.

(2) If 2 or more persons hold property as joint tenants, or with respect to a joint account, and

(

a) in the case of 2 persons, it cannot be established that one of them survived the other by 5 days,

(

i) one half of the property passes as if one person survived the other person by 5 days, and

(ii) one half of the property passes as if the other person referred to in subparagraph (

i) had survived the first person referred to in subparagraph (

i) by 5 days, and

(

b) in the case of more than 2 persons, it cannot be established that at least one of them survived the others by 5 days, the property must be divided into as many equal shares as there are joint tenants or persons holding the joint account, and the shares must be distributed to those persons who would have been entitled to a share in the event that each of the persons had survived.

(3) This

section does not apply to the appointment of a personal representative in a will.

(4) Nothing in this

section affects the law of resulting trusts.

Priority of Insurance Act provisions

11 This Division does not apply to insurance money to which

section 72 [simultaneous deaths] or 109 [simultaneous deaths] of the Insurance Act applies.

Division 3 – First Nations' Final Agreements

Definitions

12 In this Division:

"Nis g a'a citizen" has the same meaning as in the Nis g a'a Final Agreement;

"Nis g a'a Final Agreement" has the same meaning as in the Nis g a'a Final Agreement Act ;

"Nis g a'a law" has the same meaning as in the Nis g a'a Final Agreement;

"Nis g a'a Lisims Government" has the same meaning as in the Nis g a'a Final Agreement.

Will or cultural property of Nis g a'a citizens

(1) In this section, "cultural property" has the same meaning as in paragraph 115 of the Nis g a'a Government

Chapter of the Nis g a'a Final Agreement.

(2) As provided in paragraph 118 of the Nis g a'a Government

Chapter of the Nis g a'a Final Agreement, the Nis g a'a Lisims Government may commence an action under this Act in respect of the will of a Nis g a'a citizen that provides for the devolution of cultural property.

(3) In any judicial proceeding under this Act in which the validity of the will of a Nis g a'a citizen, or the devolution of the cultural property of a Nis g a'a citizen is at issue, the Nis g a'a Lisims Government has standing in the proceeding as provided in paragraph 117 of the Nis g a'a Government

Chapter of the Nis g a'a Final Agreement.

(4) In a proceeding described in subsection (2) or to which subsection (3) applies, the court must consider, among other matters, any evidence or representations in respect of Nis g a'a laws or customs dealing with the devolution of cultural property as provided in paragraph 119 of the Nis g a'a Government

Chapter of the Nis g a'a Final Agreement.

(5) As provided in paragraph 120 of the Nis g a'a Government

Chapter of the Nis g a'a Final Agreement, the participation of the Nis g a'a Lisims Government in a proceeding described in subsection (2) or to which subsection (3) applies must be in accordance with the applicable Rules of Court and does not affect the court's ability to control its process.

Will or cultural property of treaty first nation members

(1) In this section, "cultural property" , in relation to a treaty first nation, has the same meaning as in the final agreement of the treaty first nation.

(2) If the final agreement of a treaty first nation so provides, the treaty first nation may commence and may intervene in an action under this Act in respect of the will of a treaty first nation member of the treaty first nation that provides for the devolution of cultural property.

(3) If the final agreement of a treaty first nation so provides, in any judicial proceeding under this Act in which

(

a) the validity or variation of the will of a treaty first nation member of that treaty first nation, or

(

b) the devolution of cultural property of a treaty first nation member of the treaty first nation

is at issue, that treaty first nation has standing in the proceeding.

(4) In a proceeding described in subsection (2) or to which subsection (3) applies, the court must consider, among other matters, any evidence or representations in respect of the applicable treaty first nation's laws or customs dealing with the devolution of cultural property.

(5) The participation of a treaty first nation in a proceeding described in subsection (2) or to which subsection (3) applies must be in accordance with the applicable Rules of Court and does not affect the court's ability to control its process.

Notice of application for representation grant respecting

Nis g a'a citizens and treaty first nation members

(1) If a deceased person was a Nis g a'a citizen, an applicant for a grant of probate or administration in respect of the estate of the Nis g a'a citizen must, in addition to giving notice under

section 121 (1) [notice of proposed application for grant of probate or administration]

(

a) mail or deliver a notice of the application to the Nis g a'a Lisims Government, and

(

b) if the deceased person left a will and the Nis g a'a Lisims Government requests a copy of it within 30 days of receiving the notice under paragraph (a), mail or deliver a copy of the will to the Nis g a'a Lisims Government.

(2) A court must not grant or reseal probate or administration in respect of the estate of a Nis g a'a citizen unless the applicant or the applicant's lawyer, in addition to satisfying the requirements under subsection (1), certifies that he or she has

(

a) mailed or delivered a notice of the application to the Nis g a'a Lisims Government, and

(

b) if the deceased Nis g a'a citizen left a will and the Nis g a'a Lisims Government requested a copy of it within 30 days of receiving the notice under subsection (1) (a), mailed or delivered a copy of the will to the Nis g a'a Lisims Government.

(3) If the deceased person was a treaty first nation member, an applicant for a grant of probate or administration in respect of the estate of the treaty first nation member must, in addition to giving notice under

section 121 (1) [notice of proposed application for grant of probate or administration]

(

a) mail or deliver a notice of the application to the treaty first nation, and

(

b) if the deceased treaty first nation member left a will and the treaty first nation requests a copy of it within 30 days of receiving the notice under paragraph (a), mail or deliver a copy of the will to the treaty first nation of which the deceased person was a member.

(4) If a treaty first nation has standing under

section 14 (3) in a judicial proceeding, a court must not grant or reseal probate or administration in respect of the estate of a treaty first nation member of the treaty first nation unless the applicant or the applicant's lawyer, in addition to satisfying the requirements under subsection (3), certifies that he or she has

(

a) mailed or delivered a notice of the application to the treaty first nation, and

(

b) if the deceased treaty first nation member left a will and the treaty first nation requested a copy of it within 30 days of receiving the notice under subsection (3) (a), mailed or delivered a copy to the treaty first nation.

Service on Nis g a'a Lisims Government or treaty first nation

16 An action in respect of the will of a Nis g a'a citizen or a treaty first nation member must not be heard by the court at the instance of a party claiming the benefit of Division 6 of

Part 4 [Wills] unless a copy of the writ of summons has been served on the Nis g a'a Lisims Government or the treaty first nation, as applicable.

Nis g a'a citizen leaving small estate

(1) If a deceased person was a Nis g a'a citizen leaving a small estate and a will respecting all or part of the small estate, a person named in

section 109 (2) [small estate – leaving a will] must give, in addition to the notice under

section 109 (1) (a), notice to the Nis g a'a government of the proposed filing of a small estate declaration.

(2) If a deceased person was a Nis g a'a citizen leaving a small estate and no will, a person named in

section 110 (2) [small estate – no will] must give, in addition to the notice under

section 110 (1) (a), notice to the Nis g a'a government of the proposed filing of a small estate declaration.

Treaty first nation member leaving small estate

(1) If a deceased person was a treaty first nation member leaving a small estate and a will respecting all or part of the small estate, a person named in

section 109 (2) [small estate – leaving a will] must give, in addition to the notice under

section 109 (1) (a), notice to the treaty first nation of the proposed filing of a small estate declaration.

(2) If a deceased person was a treaty first nation member leaving a small estate and no will, a person named in

section 110 (2) [small estate – no will] must give, in addition to the notice under

section 110 (1) (a), notice to the treaty first nation of the proposed filing of a small estate declaration.

Part 3 – When a Person Dies Without a Will

Uniform

interpretation with laws of other provinces

19 This Part must be interpreted so as to effect its general purpose of making uniform the law of the provinces that enact identical or substantially the same provisions.

Division 1 – Distribution of Estate When There is No Will

Spouse but no descendants

20 If a person dies without a will leaving a spouse but no surviving descendant, the intestate estate must be distributed to the spouse.

Spouse and descendants

(1) In this section:

"household furnishings" means personal property usually associated with the enjoyment by the spouses of the spousal home;

"net value of an intestate estate" means the value of an intestate estate after deducting from its fair market value, both inside and outside British Columbia,

(

a) the value of household furnishings distributed to a spouse under subsection (2), and

(

b) charges, debts, funeral and administration expenses, and fees under the Probate Fee Act , payable from the estate.

(2) If a person dies without a will leaving a spouse and surviving descendants, the following must be distributed from the intestate estate to the spouse:

(

a) the household furnishings;

(

b) a preferential share of the intestate estate in accordance with subsections (3) and (4).

(3) If all descendants referred to in subsection (2) are descendants of both the intestate and the spouse, the preferential share of the spouse is $300 000, or a greater amount if prescribed.

(4) If all descendants referred to in subsection (2) are not common to the intestate and the spouse, the preferential share of the spouse is $150 000, or a greater amount if prescribed.

(5) If the net value of an intestate estate is less than the spouse's preferential share under subsection (3) or (4), the intestate estate must be distributed to the spouse.

(6) If the net value of an intestate estate is the same as or greater than the spouse's preferential share under subsection (3) or (4),

(

a) the spouse has a charge on the intestate estate for the amount of the spouse's preferential share under subsection (3) or (4), and

(

b) the residue of the intestate estate, after satisfaction of the spouse's preferential share, must be distributed as follows:

(

i) one half to the spouse;

(ii) one half to the intestate's descendants.

Distribution if 2 or more spouses

(1) If 2 or more persons are entitled to a spousal share of an intestate estate, they share the spousal share in the portions to which they agree, or if they cannot agree, as determined by the court.

(2) If 2 or more persons are entitled to apply or have priority as a spouse under this Act in respect of an intestate estate, they may agree on who is to apply or who is to have priority, but if they do not, the court may make the decision.

No spouse but intestate leaving descendants or relatives

(1) This

section applies if a person dies without a will and without leaving a surviving spouse.

(2) Subject to subsection (3) and

section 24, if a person dies without leaving a surviving spouse, the intestate estate must be distributed

(

a) to the intestate's descendants,

(

b) if there is no surviving descendant, to the intestate's parents in equal shares or to the intestate's surviving parent,

(

c) if there is no surviving descendant or parent, to the descendants of the intestate's parents or either parent,

(

d) if there is no surviving descendant, parent or descendants of a parent, but the intestate is survived by one or more grandparents or descendants of grandparents,

(

i) one half to the grandparents on one side in equal shares or to the surviving grandparent on that side, but if there is no surviving grandparent on that side, to the descendants of the grandparents on that side or either of the grandparents, and

(ii) one half to the grandparents on the other side or their descendants in the same manner as provided in subparagraph (i),

but if there is only a surviving grandparent or descendant of a grandparent on one side or the other side, the whole intestate estate to the surviving grandparent, if any, or to the descendants on the survivor's side, as the case may be, in the same manner as provided in subparagraph (i),

(

e) if there is no surviving descendant, parent, descendant of a parent, grandparent or descendant of a grandparent, but the intestate is survived by one or more great-grandparents or descendants of great-grandparents,

(

i) one half to the great-grandparents on one side or their descendants in equal shares as follows:

(

A) one share to the great-grandparents on that side in equal shares or to the surviving great-grandparent on that side, but if there is no surviving great-grandparent on that side, to the descendants of the great-grandparents or either of them;

(

B) one share to the great-grandparents on the other side or their descendants in the same manner as provided in clause (A),

but if there is only a surviving great-grandparent or descendant of a great-grandparent on either parent's side, 1/2 to the surviving great-grandparent, if any, or to the descendants on that side, as the case may be, in the same manner as provided in clause (A), and

(ii) one half to the great-grandparents on the other side or their descendants in the same manner as provided in subparagraph (i),

but if there is only a surviving great-grandparent or descendants of a great-grandparent on either side, the whole intestate estate to surviving great-grandparent and the descendants on that side in the same manner as provided in subparagraph (i), or

(

f) if there is no person who is entitled under paragraphs (

a) to (e), the intestate estate passes to the government and is subject to the Escheat Act .

(3) For the purposes of this section, persons of the 5th or greater degree of relationship to the intestate are conclusively deemed to have predeceased the intestate, and any part of the intestate estate to which those persons would otherwise be entitled must be distributed to other descendants entitled to the estate.

(4) Subsection (3) does not affect

(

a) the right of an intestate's descendants to inherit the intestate estate even though they are of a greater degree of relationship than the limit imposed by that subsection, or

(

b) the right of a person to apply under the Escheat Act on the basis of a legal or moral claim against the former owner of an estate that has escheated to the government as property to which no person is entitled to succeed as the owner.

(5) For the purpose of subsection (3),

(

a) degrees of relationship are to be computed by counting upward from the intestate to the nearest common ancestor of the intestate and his or her relative, and then downward to the relative, and

(

b) relatives of the half kinship inherit equally with those of the whole kinship in the same degree.

Distribution to descendants

(1) When a distribution is to be made under this Part to the descendants of an intestate, the property that is to be so distributed must be divided into a number of equal shares equivalent to the number of

(

a) surviving descendants, and

(

b) deceased descendants who have left descendants surviving the intestate,

in the generation nearest to the intestate that contains one or more surviving members.

(2) Subject to subsection (3), each surviving member of the generation nearest to the intestate that contains one or more surviving members must receive one share, and the share that would have been distributed to each deceased member if surviving must be divided among that member's descendants in the same manner as under subsection (1) and this subsection.

(3) Distribution to descendants under subsections (1) and (2) as a result of an intestate's parent having predeceased the intestate ends with the children of a brother or sister of the intestate.

Partial intestacy

25 This Division also applies to that part of an estate that is neither the subject of a gift nor otherwise disposed of by a will.

Division 2 – Spousal Home

Right to spousal home

(1) This Division applies to

(

a) an intestate estate that includes a spousal home, and

(

b) an estate in respect of which the spousal home is not the subject of a gift or otherwise disposed of by a will.

(2) If this Division applies, the surviving spouse may acquire the spousal home from the personal representative to satisfy, in whole or in part, the surviving spouse's interest in the estate in accordance with this Division.

Notice by personal representative

(1) If this Division applies, the personal representative of a deceased person must, at the time an application for a representation grant is made, give notice to the surviving spouse of the right of the surviving spouse to acquire the spousal home in accordance with this Division.

(2) A surviving spouse must exercise the right to acquire the spousal home during the period ending no later than 180 days after the date on which the representation grant is issued to the personal representative unless the court, before or after the expiration of that period, extends the time by which the right may be exercised.

(3) If the court grants an extension of the period referred to in subsection (2), a personal representative who disposed of the spousal home is not liable if the disposal was made

(

a) after 180 days from the date the representation grant is issued, and

(

b) before notice of the right to acquire the spousal home was delivered to the personal representative under

section 29 (1) or before the court, under subsection (2) of this section, extended the time by which that right may be exercised.

Prohibition on disposing of spousal home

28 A personal representative must not, without the written consent of the surviving spouse, dispose of the spousal home during the 180 days after the date on which the representation grant is issued or for any period of time extended under

section 27 (2) unless assets other than the spousal home are not sufficient to pay the debts and liabilities of the estate and a mortgage or charge on the spousal home would not raise sufficient money to pay those debts and liabilities.

Notice exercising right to spousal home

(1) A surviving spouse may exercise his or her right to acquire the spousal home by delivering, within the required time referred to in

section 27 (2), a written notice to

(

a) the personal representative of the deceased person, unless the surviving spouse is the personal representative, and

(

b) the descendants of the deceased person entitled to share in the intestate estate or that part of the estate that is to be treated as an intestate estate.

(2) A notice under subsection (1) must contain

(

a) a statement to the effect that the surviving spouse requires the personal representative to transfer the interest in the spousal home to the spouse, and

(

b) a statement of the value the surviving spouse places on the deceased person's interest in the spousal home as of the date of the deceased person's death.

Dispute over value of deceased person's interest

(1) If the personal representative disputes the value of the deceased person's interest in the spousal home set out in a notice under

section 29, the personal representative must deliver to the surviving spouse, within a reasonable time, a written response to the notice stating the value the personal representative places on the deceased person's interest.

(2) If the personal representative and the surviving spouse do not agree on the value of the deceased person's interest in the spousal home, the surviving spouse or the personal representative may apply to the court for an order determining the value of the deceased's person's interest.

(3) If a surviving spouse who exercises the right to acquire the spousal home is the sole personal representative of the deceased person, the surviving spouse must apply to the court for an order determining the value of the deceased person's interest in the spousal home unless the descendants entitled to share in the intestate estate or that part of the estate that is to be treated as an intestate estate agree in writing to the value that the surviving spouse places on the deceased person's interest.

(4) A descendant entitled to share in the estate or that part of the estate that is to be treated as an intestate estate may apply to the court for an order determining the value of the deceased person's interest in the spousal home if the surviving spouse, being the sole personal representative, does not apply to the court for an order under subsection (3) within 180 days of the date of the notice referred to in

section 29.

Purchase of spousal home by surviving spouse

(1) If the fair market value of the deceased person's interest in the spousal home exceeds the value of the surviving spouse's interest in the estate under

section 21 [spouse and descendants] , subject to subsection (3) of this section, the surviving spouse may purchase the remainder of the deceased person's interest from the personal representative, or from those in whom that interest beneficially vests, in accordance with the valuation of the deceased person's interest in the spousal home as determined under this Division.

(2) The surviving spouse may purchase the deceased person's interest in the spousal home under this Division whether or not the surviving spouse is a personal representative of the deceased person and despite any rule of law concerning the purchase of trust property by a trustee.

(3) Before a surviving spouse may make an application under

section 33, the surviving spouse must provide financial information in the prescribed form to

(

a) the personal representative of the deceased person, and

(

b) the descendants of the deceased person entitled to share in the intestate estate or that part of the estate that is to be treated as an intestate estate.

Occupancy costs of spousal home

32 A surviving spouse who occupies the spousal home pending his or her purchase of the spousal home under this Division must pay, from the date of death of the deceased person to the date of the purchase of the spousal home

(

a) the cost of insuring the spousal home against damage, destruction and public liability,

(

b) all applicable taxes assessed against the spousal home,

(

c) all reasonable and necessary expenses to maintain and repair the spousal home,

(

d) rates and charges for electricity, gas, fuel, oil and water consumed at the spousal home, and

(

e) a periodic payment that falls due under any mortgage on the spousal home and any bonus or payment of a penalty resulting from any prepayment by the surviving spouse.

Retention of spousal home

(1) On application by a surviving spouse, the court may make an order under subsection (2) if

(

a) the surviving spouse is ordinarily resident in the spousal home at the time of the deceased person's death,

(

b) assets in the estate are not sufficient to satisfy the interests of all descendants entitled to share in the intestate estate or that part of the estate that is to be treated as an intestate estate without disposing of the spousal home,

(

c) the court is satisfied that purchasing the spousal home under

section 31 would impose a significant financial hardship on the surviving spouse,

(

d) the court is satisfied that, in all the circumstances, a greater prejudice would be imposed on the surviving spouse by being unable to continue to reside in the spousal home than would be imposed on the descendants entitled to share in the intestate estate or that part of the estate that is to be treated as an intestate estate by having to wait an indeterminate period of time to receive all or part of their share of the intestate estate, and

(

e) either

(

i) the surviving spouse has resided in the spousal home for a sufficient period of time to have established a connection to the spousal home, or

(ii) the surviving spouse has a sufficient connection with the community or members of the community in the vicinity of the spousal home to warrant an order under subsection (2).

(2) The court may, subject to any terms or conditions the court considers appropriate, make an order doing one or more of the following:

(

a) vesting the same interest in the spousal home in the surviving spouse that the deceased person had;

(

b) specifying the amount of money the surviving spouse must pay to the descendants towards satisfaction of their interest in the estate;

(

c) converting the remaining unpaid interest of the descendants in the intestate estate into a registrable charge against the title to the surviving spouse's interest in the spousal home;

(

d) determining an interest rate, as that term is defined in

section 7 of the Court Order Interest Act , or at any other rate the court considers appropriate, for the amount the descendants are entitled to under paragraph (

c) of this subsection;

(

e) determining the value of the registrable charge to include the principal amount owing to the descendants entitled to share in the intestate estate or that part of the estate that is to be treated as an intestate estate and the expected value of the future interest that will be earned under paragraph (

d) of this subsection.

Registrable charges

(1) A registrable charge becomes due and payable in the circumstances specified by the court, having regard to prevailing residential lending practices in Canada, but if none are specified, becomes due and payable on the earlier of

(

a) twelve months after the date of death of the surviving spouse,

(

b) twelve months after the date the surviving spouse ceases residing in the spousal home, or

(

c) the completion date of the sale of the spousal home.

(2) If a registrable charge payable under subsection (1) is not paid, the owner of the registrable charge may take any action that a mortgagee of land under the prescribed standard mortgage terms under the Land Title Act may take.

(3) A registrable charge is not enforceable until a form approved by the Director of Land Titles accompanied by a certified copy of the court order under

section 33 (2), in relation to the registrable charge, is registered under the Land Title Act .

(4) The owner of a registrable charge, on receipt of payment of the total amount secured by the registrable charge, must deliver to the registered owner of the spousal home or to that person's representative, a release of the registrable charge, in the form approved by the Director of Land Titles.

(5) A registrable charge may be released from the title to the spousal home by filing in a land title office

(

a) a release of the registrable charge executed by the owner of the registrable charge in the form approved by the Director of Land Titles, or

(

b) a certified copy of a court order releasing the registrable charge.

Circumstances when registrable charge becomes payable

(1) In this section, "charge" has the same meaning as in the Land Title Act .

(2) In addition to the circumstances described in

section 34 (1), a registrable charge also becomes due and payable if the court, on application by or on behalf of the owner of the registrable charge, orders that it should become due and payable because of the following:

(

a) the surviving spouse has not paid an amount required to be paid under or secured by a charge registered against the title of the spousal home in priority to the registrable charge;

(

b) a tax or other charge is levied against the title of the spousal home and has not been paid, unless payment has been lawfully deferred;

(

c) an action or failure to take action jeopardizes the value of the spousal home to such an extent that it no longer provides sufficient security for the total amount secured by the registrable charge;

(

d) the provisions of the registrable charge have not been complied with or an event has occurred pursuant to those provisions by which the amount secured by the registrable charge becomes due and payable.

(3) If a registrable charge becomes payable by order of the court under subsection (2), the surviving spouse has a period of 180 days to sell his or her interest in the spousal home in order to pay, in full, the amount secured by the registrable charge.

(4) After 180 days the owner of the registrable charge may take any action in respect of the registrable charge that a mortgagee of land may take under the prescribed standard mortgage terms under the Land Title Act if the surviving spouse has not sold his or her interest in the spousal home or the owner of the registrable charge has not been paid.

(5) The owner of a registrable charge may, before or after it is registered in a land title office, postpone the priority of the registrable charge to other charges.

(6) The owner of a registrable charge may sell, assign or otherwise dispose of the registrable charge before or after it is registered in a land title office in a form approved by the Director of Land Titles.

(7) If the sale of a spousal home yields sale proceeds that are not sufficient to pay, in full, the amount secured by a registrable charge, the court may order the release of the registrable charge, but may not make any order to recover from the estate, the surviving spouse or the estate of the surviving spouse any shortfall resulting from the insufficiency of sale proceeds to pay the amount secured by the registrable charge.

Part 4 – Wills

Division 1 – Making a Will

Who can make a will

(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.

How to make a valid will

(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.

(2) A will that does not comply with subsection (1) is invalid unless

(

a) the court orders it to be effective as a will under

section 58 [court order curing deficiencies] ,

(

b) it is a will recognized as valid under

section 80 [validity of wills made in accordance with other laws] , or

(

c) it is valid under another provision of this Act.

Will by members of military forces

(1) A member of the Canadian Forces while placed on active service under the National Defence Act (Canada), or a member of the naval, land or air force of any member of the British Commonwealth of Nations or any ally of Canada while on active service may, regardless of his or her age, make a gift of property by will in writing, signed by the will-maker at its end or by some other person in the presence of and by the direction of the will-maker.

(2) If the will is signed by the will-maker, there is no need for a witness to be present to witness or to sign the will as a witness.

(3) If the will is signed by another person, the signature of that other person must be witnessed by the signature of at least one person, who must sign the will in the presence of the will-maker and of that other person.

Clarification of doubt about signature placement

(1) A will is conclusively deemed to be signed at its end if the signature of the will-maker is placed so that it is apparent on the face of the will that the will-maker intended to give effect to the will, including in, but not limited to, the following circumstances:

(

a) the will-maker's signature is placed

(

i) at or after the end of the will, or

(ii) following, under or beside the end of the will,

if it is apparent that the will-maker intended by his or her signature to give effect to the will;

(

b) the will-maker's signature does not immediately follow the end of the will;

(

c) a blank space intervenes between the concluding words of the will and the will-maker's signature;

(

d) the will-maker's signature is placed among the words of a testimonium clause or of an attestation clause or follows or is after or under an attestation clause either with or without a blank space intervening, or follows or is after, under or beside the name of a witness who signed the will;

(

e) the will-maker's signature is on a side or page or other portion of the will on which no disposing part of the will is written above the will-maker's signature;

(

f) there appears to be sufficient space to contain the will-maker's signature on or at the bottom of the side or page or other portion of the same paper on which the will is written and preceding that on which the will-maker's signature appears.

(2) A will-maker's signature that conforms to this

section does not give effect to

(

a) a gift or direction in the will that follows the will-maker's signature, or

(

b) a gift or direction inserted in the will after the will-maker signed the will.

Witnesses to wills

(1) Signing witnesses to a will-maker's signature must be 19 years of age or older.

(2) A person may witness a will even though he or she may receive a gift under it, but the gift may be void under

section 43 [gifts to witnesses] .

(3) A will is not invalid only because a witness was, at the time the will was signed by the will-maker, or afterwards became, legally incapable of proving the will.

Division 2 – Legal Effect of a Will

Property that can be gifted by will

(1) A person may, by will, make a gift of property to which he or she is entitled at law or in equity at the time of his or her death, including property acquired before, on or after the date the will is made.

(2) Unless a contrary intention appears in a will, when a will refers to property, the will, with respect to the property, is to be interpreted as if it had been made immediately before the death of the will-maker.

(3) A gift in a will

(

a) takes effect according to its terms, and

(

b) subject to the terms of the gift, gives to the recipient of the gift every legal or equitable interest in the property that the will-maker had the legal capacity to give.

Meaning of particular words in a will

(1) This

section is subject to a contrary intention appearing in a will.

(2) A gift of property in a will to persons described as "heir" or "next of kin" of the will-maker or of another person takes effect as if it had been made to the persons among whom and in the shares in which the estate of the will-maker or other person would have been divisible if the will-maker or other person had died without a will.

(3) In a gift of property in a will

(

a) the words

(i) "die without issue",

(ii) "die without leaving issue", or

(iii) "have no issue", or

(

b) other words importing either no descendants or no descendants in a person's lifetime or at the time of the will-maker's death or a complete absence of descendants,

are deemed to refer to no descendants or no descendants in the lifetime or at the time of death of that person and not to a complete absence of descendants of that person.

(4) A gift of property to a class of persons described as "issue" or "descendants" of a will-maker, or a similar word, and which encompasses more than one generation of beneficiaries, must be distributed as if it were part of an intestate estate to be distributed to descendants.

Gifts to witnesses

(1) Unless a court otherwise declares under subsection (4), a gift in a will is void if it is to

(

a) a witness to the will-maker's signature or to the spouse of that witness,

(

b) a person signing the will by the will-maker's direction, or the spouse of the person signing, or

(

c) a person claiming under a person referred to in paragraph (

a) or (b).

(2) The relevant time for determining whether one person is the spouse of another is the time when the will was made.

(3) If a gift is void under subsection (1), the remainder of the will is not affected.

(4) On application, the court may declare that a gift to a person referred to in subsection (1) is not void and is to take effect, if the court is satisfied that the will-maker intended to make the gift to the person even though the person was a witness to the will.

(5) Extrinsic evidence is admissible for the purposes of establishing the will-maker's intention under subsection (4).

Residue of estate

44 If a will does not give or otherwise dispose of all of the will-maker's property, the property that is not the subject of a gift or otherwise disposed of in the will

(

a) must be distributed to the persons who would be entitled if that property were an intestate estate, and

(

b) if there is no person who would be entitled under paragraph (a), passes to the government and is subject to the Escheat Act .

Gift of land contemplating division

45 If a gift of land in a will to 2 or more beneficiaries contemplates a physical division of the parcel, by subdivision or otherwise, the gift takes effect as a gift to the beneficiaries as tenants in common in proportion to their interests, unless a contrary intention appears in the will.

When gifts cannot take effect

(1) If a gift in a will cannot take effect for any reason, including because a beneficiary dies before the will-maker, the property that is the subject of the gift must, subject to a contrary intention appearing in the will, be distributed according to the following priorities:

(

a) to the alternative beneficiary of the gift, if any, named or described by the will-maker, whether the gift fails for a reason specifically contemplated by the will-maker or for any other reason;

(

b) if the beneficiary was the brother, sister or a descendant of the will-maker, to their descendants, determined at the date of the will-maker's death, in accordance with

section 42 (4) [meaning of particular words in a will] ;

(

c) to the surviving residuary beneficiaries, if any, named in the will, in proportion to their interests.

(2) If a gift cannot take effect because a beneficiary dies before the will-maker, subsection (1) applies whether the beneficiary's death occurs before or after the will is made.

Property encumbered by security interest

(1) In this section, "purchase money security interest" means a security interest taken in land or in tangible personal property that

(

a) secures credit, including interest charges, provided to the will-maker to acquire, improve or preserve the land or tangible property, and

(

b) is registered under the Land Title Act or the Personal Property Security Act .

(2) The interest of a beneficiary in a gift of property encumbered by a purchase money security interest is, as between the different persons claiming through the will-maker, primarily liable to pay the debt secured by the purchase money security interest to the extent that the debt is attributable to the acquisition, improvement or preservation of the property.

(3) If a purchase money security interest applies to more than one gift of property in a will, each property is liable for payment of the purchase money security interest proportionally, to the extent that the debt is attributable to the acquisition, improvement or preservation of each property.

(4) Subsections (2) and (3) are subject to a contrary intention appearing in the will, but a contrary intention is not signified by

(

a) a general direction in the will for the payment of debts, or

(

b) a charge of debts on the will-maker's estate,

unless the will-maker further signifies that intention by words expressly or by necessary implication referring to all or some part of the debt secured by the purchase money security interest.

(5) Nothing in this

section affects the right of a secured party to obtain payment or satisfaction either out of other property of the deceased person or otherwise.

Relief from disposition of property

(1) In this section, "proceeds" means the proceeds at the time of disposition, and includes

(

a) non-monetary consideration, and

(

b) in the case of a gift, the fair market value of the gift.

(2) If property that is the subject of a gift in a will is disposed of by a nominee the beneficiary of the gift is entitled to receive from the will-maker's estate an amount equivalent to the proceeds of the gift as if the will had contained a specific gift to the beneficiary of that amount.

(3) Subsection (2) does not apply if

(

a) the disposition is made to carry out instructions given by the will-maker at a time when the will-maker was legally capable of giving instructions, or

(

b) a contrary intention appears in the will.

Will exercising a power of appointment

49 A will made in accordance with this Act is, as to form, a valid execution of a power of appointment by will, even if it has been expressly required that a will in exercise of the power be made in some form other than that in which it is made.

Rules if assets are not sufficient

(1) This

section is subject to a contrary intention appearing in a will.

(2) If a will-maker's estate is not sufficient to satisfy all debts and gifts, the debts and gifts must be satisfied or reduced in accordance with this section.

(3) Land charged by the will-maker with payment of debts or pecuniary gifts, or both, is primarily liable for the debts and gifts, despite a failure of the will-maker to expressly exonerate the personal property.

(4) Land and personal property must be reduced together.

(5) Subject to subsection (3), assets are reduced in the following order:

(

a) property specifically charged with a debt or left on trust to pay a debt;

(

b) property distributed as an intestate estate and residue;

(

c) general, demonstrative and pecuniary legacies;

(

d) specific legacies;

(

e) property over which the will-maker had a general power of appointment.

Gifts of unowned property

(1) Subject to subsection (2),

(

a) a gift of property that the will-maker does not own is void, and

(

b) the rights of a beneficiary are not affected by the purported gift by the will-maker of property owned by the beneficiary.

(2) A will-maker may make a gift of property that is conditional on the disposition by the beneficiary of property owned by the beneficiary.

Undue influence

52 In an action, if a person claims that a will or any provision of it resulted from another person

(

a) being in a position where the potential for dependence or domination of the will-maker was present, and

(

b) using that position to unduly influence the will-maker to make the will or the provision of it that is challenged,

and establishes that the other person was in a position where the potential for dependence and domination of the will-maker was present, the party seeking to defend the will or the provision of it that is challenged or to uphold the gift has the onus of establishing that the person in the position where the potential for dependence and domination of the will-maker was present did not exercise undue influence over the will-maker with respect to the will or the provision of it that is challenged.

Division 3 – Abrogation of Common Law Rules

Common law presumptions abrogated

(1) The presumption of law that a gift by a will-maker made during his or her lifetime to a child of the will-maker or to a person to whom the will-maker stands in place of a parent is an advancement of a portion that is intended to revoke a gift in the will-maker's will in favour of the child or person is abrogated and the gift in the will takes effect according to its terms.

(2) The presumption of law that a legacy is revoked by a gift in the same amount as the legacy made by the will-maker during the will-maker's lifetime is abrogated and the legacy takes effect according to its terms.

(3) The presumption of law that a debt owed by a will-maker is satisfied by a legacy to the creditor equal to or greater than the debt is abrogated and the debt continues to be a claim against the will-maker's estate.

(4) The presumption of law that a binding promise by a person to make a gift to advance a child in life is satisfied to the extent of the benefit promised by a gift in the person's will to the child is abrogated and the promise remains binding on the person and the person's estate.

(5) The abrogation of a presumption set out in any of subsections (1) to (4) is subject to a contrary intention appearing in the will or otherwise and extrinsic evidence is admissible to prove the contrary intention.

Division 4 – Altering, Revoking and Reviving Wills

How to alter a will

(1) To make a valid alteration to a will the alteration must be made in the same way that a valid will is made under

section 37 [how to make a valid will] .

(2) An alteration to a will is valid if the signature of the will-maker to the alteration, and the witnesses to the signature of the will-maker, are made

(

a) in the margin or in some other part of the will opposite to or near to the alteration, or

(

b) at the end of or opposite to a memorandum referring to the alteration and written in some part of the will.

(3) An alteration to a will that is not made by the will-maker in accordance with this

section is ineffective

(

a) except to invalidate words or meanings that the alteration makes illegible, unless the court reinstates the illegible words under

section 58 (4) [court order curing deficiencies] , or

(

b) unless the court orders the alteration to be effective under

section 58.

How to revoke a will

(1) A will or part of a will is revoked only in one or more of the following circumstances:

(

a) by another will made by the will-maker in accordance with this Act;

(

b) by a written declaration of the will-maker that revokes all or part of a will made in accordance with

section 37 [how to make a valid will] ;

(

c) by the will-maker, or a person in the presence of the will-maker and by the will-maker's direction, burning, tearing or destroying all or part of the will in some manner with the intention of revoking all or part of it;

(

d) by an order of the court under

section 58 [court order curing deficiencies] , if the court determines that the consequence of the act of burning, tearing or destroying all or part of the will in some manner is apparent on the face of the will, and the will-maker intended to revoke all or part of the will.

(2) A will is not revoked in whole or in part by presuming an intention to revoke it because of a change in circumstances.

Revocation of gifts

(1) This

section is subject to a contrary intention appearing in a will.

(2) If a will-maker

(

a) makes a gift to a person who was or becomes the spouse of the will-maker,

(

b) appoints as executor or trustee a person who was or becomes the spouse of the will-maker, or

(

c) confers a general or special power of appointment on a person who was or becomes the spouse of the will-maker,

and after the will is made and before the will-maker's death, the will-maker and his or her spouse cease to be spouses under

section 2 (2) [when a person is a spouse under this Act] , the gift, appointment or power of appointment is revoked and the gift must be distributed as if the spouse had died before the will-maker.

(3) The operation of subsection (2) is not affected by a subsequent reconciliation of the will-maker and the spouse.

(4) For the purposes of subsection (2), the relevant time for determining whether a person

(

a) was the spouse of a will-maker is at the time the will was made, or

(

b) became the spouse of the will-maker is at any time after the will was made and before the spouses ceased to be spouses under

section 2 (2).

Revival of a will

(1) A will or part of a will that has been revoked is revived only by a will that shows an intention to give effect to the revoked will or the part that was revoked.

(2) Unless a contrary intention appears in the will that revives a will under subsection (1), if a will that has been partly revoked and afterwards wholly revoked is revived, the revival does not extend to the part that was revoked before the revocation of the whole.

(3) If a will has been revived by a codicil or has, by a codicil, been re-signed in the presence of 2 witnesses, the will is deemed to have been made at the time it was revived or re-signed.

(4) A will or part of a will that has been revoked may not be revived except

(

a) by an order of the court under

section 58 if the court is satisfied that the will-maker intended to give effect to a will or part of a will that was revoked, or

(

b) in accordance with any other provision of this Act that recognizes the revival of a will.

Division 5 – Curing Deficiencies and Rectification of Wills

Court order curing deficiencies

(1) In this section, "record" includes data that

(

a) is recorded or stored electronically,

(

b) can be read by a person, and

(

c) is capable of reproduction in a visible form.

(2) On application, the court may make an order under subsection (3) if the court determines that a record, document or writing or marking on a will or document represents

(

a) the testamentary intentions of a deceased person,

(

b) the intention of a deceased person to revoke, alter or revive a will or testamentary disposition of the deceased person, or

(

c) the intention of a deceased person to revoke, alter or revive a testamentary disposition contained in a document other than a will.

(3) Even though the making, alteration or revival of a will does not comply with this Act, the court may, as the circumstances require, order that a record, document or writing or marking on a will or document be fully effective as though it had been made

(

a) as the will or part of the will of the deceased person,

(

b) as an alteration, revocation or revival of a will of the deceased person, or

(

c) as the testamentary intention of the deceased person.

(4) If an alteration to a will makes a word or provision illegible and the court is satisfied that the alteration was not made in accordance with this Act, the court may reinstate the original word or provision if there is evidence to establish what the original word or provision was.

Rectification of a will

(1) On application, the court, sitting as a court of construction or as a court of probate, may order that a will be rectified if the court determines that the will fails to carry out the will-maker's intentions because of

(

a) an error arising from an accidental slip or omission,

(

b) a misunderstanding of the will-maker's instructions, or

(

c) a failure to carry out the will-maker's instructions.

(2) Extrinsic evidence, including evidence of the will-maker's intent, is admissible to prove the existence of a circumstance described in subsection (1).

(3) An application for rectification of a will must be made no later than 180 days from the date the representation grant is issued unless the court grants leave to make an application after that date.

(4) If the court grants leave to make an application after 180 days from the date the representation grant is issued, a personal representative who distributed any part of the estate to which entitlement is subsequently affected by rectification is not liable if, in reasonable reliance on the will, the distribution was made

(

a) after 180 days from the date the representation grant is issued, and

(

b) before the notice of the leave application is delivered to the personal representative.

(5) Subsection (4) does not affect the right of any person to recover from a beneficiary any part of the estate distributed in the circumstances described in that subsection.

Division 6 – Variation of Wills

Maintenance from estate

60 Despite any law or enactment to the contrary, if a will-maker 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, the court may, in an action by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the will-maker's estate for the spouse or children.

Time limit and service

(1) An action commenced by a person claiming the benefit of this Division must not be heard by the court unless

(

a) the action is commenced within 180 days from the date the representation grant is issued in British Columbia,

(

b) a copy of the writ of summons has been served on the executor of the will no later than 30 days after the expiry of the 180 day period referred to in paragraph (

a) unless the court, before or after the expiration of the 30 days, extends the time for service, and

(

c) if there are minor children of the will-maker, or if the spouse or a child of the will-maker is mentally incapable, a copy of the writ of summons has been served on the Public Guardian and Trustee.

(2) An action in respect of the will of a Nis g a'a citizen or a treaty first nation member must not be heard by the court at the instance of a party claiming the benefit of this Division unless a copy of the writ of summons has been served on the Nis g a'a Lisims Government or the treaty first nation, as applicable.

(3) If the Public Guardian and Trustee is served with a copy of the writ of summons under subsection (1), the Public Guardian and Trustee is entitled to appear, to be heard and to any costs that the court orders.

(4) If an action has been commenced on behalf of a person under this Division, it may be treated by the court as, and so far as regards the question of limitation is conclusively deemed to be, an action on behalf of all persons who might apply.

(5) Within 10 days from the date of the issue of the writ of summons, a plaintiff in an action under this Division may register a certificate of pending litigation in a form approved under the Land Title Act against the land sought to be affected in the land title office in which the title to the land is registered.

Evidence

(1) In an action under

section 60 the court may accept the evidence it considers proper of the will-maker's reasons, so far as may be determined,

(

a) for making the gifts made in the will, or

(

b) for not making adequate provision for the will-maker's spouse or children,

including any written statement signed by the will-maker.

(2) In estimating the weight to be given to a statement referred to in subsection (1), the court must have regard to all the circumstances from which an inference may reasonably be drawn about the accuracy or otherwise of the statement.

Court may make order subject to conditions

63 The court may

(

a) attach any conditions to an order under this Division that it thinks appropriate, or

(

b) refuse to make an order in favour of a person whose character or conduct, in the court's opinion, disentitles the person to the benefit of an order under this Division.

Lump sum or periodic payments or trust

64 In making an order under this Division the court may, if it thinks it is appropriate, order that

(

a) the provision for the will-maker's spouse or children is to consist of a lump sum, a periodic or other payment or a transfer of property, or

(

b) a trust be created in favour of the will-maker's spouse.

Payments fall rateably on estate

(1) Unless the court otherwise determines, the incidence of the payments ordered by the court under this Division falls rateably on the will-maker's estate.

(2) If the authority of the court does not extend or cannot, directly or indirectly, be made to extend to the whole estate, subsection (1) applies to as much of the estate as is located in British Columbia.

Power to suspend administration and exempt from order

66 The court may, subject to any terms or conditions the court considers appropriate, make the following order:

(

a) suspending, in whole or in part, the administration of the will-maker's estate;

(

b) exempting any part of the will-maker's estate from the effect of an order under

section 60 [maintenance from estate] .

Power of court to allow commutation

(1) The court may make an order that a periodic payment or lump sum is to be paid by a beneficiary to represent, or in commutation of, the proportion of the sum ordered to be paid that falls on the part of the estate in which the beneficiary is interested, and that the

part is released from further liability.

(2) In making an order under subsection (1), the court may give directions concerning the security and disposition of the periodic payment or lump sum under subsection (1).

Effect of order

68 On an order being made under this Division, the part of the estate comprised in it or affected by it must be held subject to the provisions of the order, but the order does not bind land unless the order is registered as a charge against the land affected in the land title office in which the title to the land is registered.

Registration of title

(1) Title to property distributed by gift in a will to a beneficiary must not be registered in a land title office except after the time set out in

section 155 [distribution of estate] unless

(

a) the beneficiaries entitled under the will consent to the registration, or

(

b) a court approves the registration.

(2) A registration under subsection (1) is subject to the liability of being subject to an order under this Division.

Mortgage in anticipation of order invalid

(1) A person for whom provision is made under this Division must not anticipate that provision.

(2) A mortgage, charge or assignment of any kind of or over a provision referred to in subsection (1) is of no effect if it is made before the order of the court is made.

(3) A mortgage, charge or assignment made after an order of the court referred to in subsection (1) is made is of no effect unless it is made with the court's permission.

Court may cancel or vary order

71 If the court has made an order under

section 60 [maintenance from estate] , the court may

(

a) inquire whether, at any subsequent date, changes in the circumstances of the person in whose favour the order was made have resulted, in whole or in part, in the person's entitlement to adequate provision separate from the order, and

(

b) cancel, vary or suspend its order, or make another order.

Appeal to Court of Appeal

72 A person who considers himself or herself prejudicially affected by an order under this Division may appeal to the Court of Appeal.

Division 7 – Registration of Notice of Will

Filing of notice of will

73 If a person makes a will, a notice of the will may be filed with the chief executive officer in a form satisfactory to the chief executive officer.

Filing of notice of revocation

74 If a will is revoked, whether or not a notice was filed under

section 73, a notice of revocation in a form satisfactory to the chief executive officer may be filed with the chief executive officer.

Filing notice of change of place of will

75 If a notice has been filed under

section 73 and the will is no longer located at the place mentioned in the notice, notice of the change in a form satisfactory to the chief executive officer may be filed with the chief executive officer.

Chief executive officer's records

76 The chief executive officer must maintain, in a system that the chief executive officer believes facilitates access to information by those who require it, a record of every notice filed under this Division.

Search of records

(1) A lawyer or a member of the Society of Notaries Public of British Columbia may, on application in a form satisfactory to the chief executive officer, ascertain from the chief executive officer whether or not a notice has been filed under this Division.

(2) A person other than a lawyer or a member of the Society of Notaries Public of British Columbia may, on written application accompanied either by a certificate of the death of the person named in the application or by a statutory declaration proving to the satisfaction of the chief executive officer that the person named in the application has died, ascertain from the chief executive officer if the person named in the application has filed a notice under this Division.

(3) The chief executive officer must

(

a) issue to an applicant under subsection (1) or (2) a certificate in duplicate showing the contents of all notices filed that are relevant to the application, and

(

b) permit the applicant, or the agent of the applicant, to inspect the notices.

(4) The chief executive officer may provide a lawyer or member of the Society of Notaries Public of British Columbia who is an applicant under subsection (1) with

(

a) a copy of a notice filed under this Division, or

(

b) access by computer or otherwise to information contained in a notice filed under this Division.

(5) Except as provided in this section, the chief executive officer must not provide to any person information regarding notices filed under this Division or information about whether or not a notice has been filed.

Validity of will or revocation not affected

78 The validity of a will and the validity of a revocation of a will is not affected by filing or not filing a notice under this Division.

Division 8 – Conflict of Laws

Interpretation

(1) In this Division, a reference to the law of a place other than British Columbia is a reference to the internal law only of that place and does not include its conflict of laws rules.

(2) A requirement of the law of a place other than British Columbia that

(

a) certain formalities must be observed by will-makers of a particular description when making a will, or

(

b) witnesses to wills must have certain qualifications

is a formal requirement only that does not affect the essential validity of the will.

Validity of wills made in accordance with other laws

80 1) A will is valid as to the formal requirements for making the will and is admissible to probate if it is made in accordance

(

a) with the law of the place where the will is made,

(

b) with the law of the will-maker's domicile, either at the date the will is made or at the date of the will-maker's death,

(

c) with the law of the will-maker's ordinary residence, either at the date the will is made or at the date of the will-maker's death,

(

d) with the law of a country of which the will-maker was a citizen, either at the date the will is made or at the date of the will-maker's death,

(

e) with the law of British Columbia, but the will is made outside British Columbia,

(

f) with the law of the place where the will-maker's property is situated at the date the will is made or at the date of the will-maker's death,

(

g) in the case of a will made on board a vessel or aircraft of any description, with the law of the place with which, having regard to the registration, if any, of a vessel or aircraft, the vessel or aircraft is most closely connected, or

(

h) to the extent that the will exercises a power of appointment, with the law governing the essential validity of that power.

(2) If a will is not valid under subsection (1), it is deemed to be valid if a subsequent amendment to the law of the relevant jurisdiction before the deceased person's death would have validated the will.

(3) The formal validity of a will that revokes

(

a) a will that would be treated as formally valid under this Division, or

(

b) a provision of a will that would be treated under this Division as a formally valid provision,

may be determined by reference to any law under which the revoked will or provision of the will would be treated as formally valid and that is relevant for that purpose under this Division.

Resort to other aids to construction

81 In the construction of a will to which this Division applies, the court may resort to the law of the place where the will-maker was domiciled or was ordinarily resident at the time the will was made.

Interest in an immovable

(1) If the value of personal property consists mainly or wholly in its use in connection with an interest in an immovable by the owner or occupier of the personal property, the right to an interest in the personal property under a will is governed by the law of the place where the immovable is located.

(2) In subsection (1), "interest in an immovable" includes any estate or interest in land whether the estate or interest is real property or personal property, and includes a leasehold estate.

Division 9 – Adoption of Convention Providing a Uniform Law

on the Form of an International Will

Convention adopted

(1) In this section, "convention" means the Convention Providing a Uniform Law on the Form of an International Will set out in

Schedule 2 to this Act.

(2) The convention

(

a) is in force in British Columbia, and

(3) The following are persons authorized to act in connection with an international will:

(

a) lawyers;

(

b) members of the Society of Notaries Public of British Columbia.

(4) Nothing in this

section detracts from or affects the validity of a will that is valid under the laws in force in British Columbia other than this section.

(5) Section 58 [court order curing deficiencies] applies to a will purporting to be signed or witnessed, or both, in accordance with the convention.

(6) This

section applies to wills made before, on or after the date this

section comes into force if the will-maker has not died before that date.

Part 5 – Benefit Plans

Application of

Part

(1) This Part applies whether or not a benefit plan gives a person entitled to a benefit under the plan the right to make a designation.

(2) If a benefit plan provision is inconsistent with this Part, this Part prevails unless the benefit plan provision that is inconsistent is authorized under another enactment of British Columbia or Canada.

(3) This Part does not apply to a contract of insurance or to a declaration to which

Part 3 [Life Insurance] or

Part 4 [Accident and Sickness Insurance] of the Insurance Act applies.

(4) If this

Part conflicts or is inconsistent with another enactment of British Columbia or Canada, the other enactment prevails.

Division 1 – Designation Requirements

Designated beneficiaries

(1) A person entitled to a benefit under a benefit plan may

(

a) designate another person or persons to whom or for whose advantage the benefit is payable as a designated beneficiary, and

(

b) unless the designation is irrevocable under

section 87, alter or revoke the designation.

(2) A designation under this

section

(

a) is only effective, and if the designation can be altered or revoked is only effective to alter or revoke the designation, if the designation

(

i) is in writing, and

(ii) is signed by the person making it, or by another person in the presence of the person making it and by his or her direction, and the signature may be in the name of the person making it or the person signing,

(

b) may be made in a will, but if it is,

(

i) the designation is only effective if it relates expressly to a benefit plan, either generally or specifically, and

(ii) Division 3 [Designated Beneficiaries in a Will] of this Part applies to the designation, and

(

c) is subject to

section 89 [when designations may not be changed] .

(3) A person granted power over financial affairs under

(

a) section 8 of the Power of Attorney Act , or

(

b) a committee acting under the Patients Property Act

may make a designation under this

section only if expressly authorized to do so by the court and the designation is not made in a will.

Several designated beneficiaries

86 If 2 or more designated beneficiaries are designated other than alternatively, but no division is made of the benefit payable under the benefit plan on the participant's death, the benefit is payable to the designated beneficiaries in equal shares.

Irrevocable designations

(1) A participant may make an irrevocable designation.

(2) An irrevocable designation has effect as an irrevocable designation only if, during the lifetime of the participant, it is filed with an office in Canada specified for that purpose by the benefit plan administrator.

(3) If a person

(

a) makes an irrevocable designation by will, or

(

b) makes an irrevocable designation that is not filed in accordance with subsection (2),

the designation takes effect as a revocable designation.

Effect of irrevocable designation

(1) While a designated beneficiary of an irrevocable designation is living, the participant may not alter or revoke the designation without the consent of the designated beneficiary.

(2) A benefit that is the subject of an irrevocable designation

(

a) is not subject to the control of the participant or the participant's creditors, and

(

b) does not form part of the participant's estate.

Division 2 – Other Benefit Plan Provisions

When designations may not be changed

89 If the amount or duration of a payment under a benefit plan is determined having regard to the person entitled to a benefit under a benefit plan, unless otherwise permitted under the terms of the plan, the person or persons named as designated beneficiary or designated beneficiaries may not be changed after the payments start.

Maintaining previous designations

(1) Subject to subsection (2), a new designation of the same designated beneficiary may be made, other than by a will, by a nominee.

(2) Subsection (1) operates only if the designation renews, replaces or converts a similar instrument made by the participant while capable.

(3) If a benefit plan administrator acts in accordance with a new designation described in subsection (1), the benefit plan administrator is entitled to rely on that designation and is discharged in respect of that benefit.

Designated beneficiary dying before participant

91 If a designated beneficiary dies before the participant, and no disposition of the share of the deceased designated beneficiary is provided for in the designation, the share is payable

(

a) to the surviving designated beneficiary,

(

b) if there is more than one surviving designated beneficiary, to the surviving designated beneficiaries in equal shares, or

(

c) if there is no surviving designated beneficiary, to the participant's personal representative.

Trustee for designated beneficiary

(1) A participant may, in the same manner as a designation, appoint or alter or revoke the appointment of a trustee for a designated beneficiary.

(2) A payment made by a benefit plan to the trustee for a designated beneficiary discharges the benefit plan administrator to the extent of the payment.

Enforcing payment of benefit

(1) If a designation is in effect when a participant dies, a designated beneficiary or trustee entitled to a benefit under the designation may enforce payment of the benefit.

(2) A benefit plan administrator may set up any defence that would have been available had the claim to enforce payment been brought by the participant or the participant's personal representative.

Benefit plan administrator discharged of liability

94 If a benefit plan administrator transfers a benefit in accordance with the benefit plan to a designated beneficiary or to the trustee appointed under

section 92, the benefit plan administrator is discharged in respect of that benefit even if the benefit plan administrator later receives a notice of change of designated beneficiary.

Benefit not part of estate

95 A benefit payable to a designated beneficiary or to a trustee appointed under

section 92 [trustee for designated beneficiary] under a benefit plan on the death of a participant does not form part of the participant's estate and is not subject to the claims of the participant's creditors.

Division 3 – Designated Beneficiaries in a Will

Alteration or revocation of designation in will

96 A designation in a will may be altered or revoked by a later designation that is not in a will.

Designation in will

(1) A revocation in a will of a designation revokes a designation that is not in a will only if the revocation in the will relates to the designation, either generally or specifically, and the revocation is not irrevocable.

(2) The revocation of a will revokes a designation in the will.

(3) Revocation of a designation does not revive an earlier designation.

Effect of designation in purported wills

(1) A designation or revocation of a designation contained in a purported will is not invalid merely because the instrument is invalid as a will.

(2) A designation in a purported will is revoked by an event that would have the effect of revoking the instrument if it had been a valid will.

Effect of revival of will on designation

99 Revival of a will by codicil does not revive a revoked designation in a will unless the codicil expressly provides for revival.

Effective date of designation and revocation

100 Unless a designation is irrevocable, a designation or revocation of a designation in a will is effective from the time the will is made.

Part 6 – Administration of Estates

Division 1 – Application of this Part and Vesting of Property

Application

101 This Part applies to the following:

(

a) a personal representative or other person acting or intending to act in British Columbia under a will or a representation grant, wherever the will is made or the representation grant is issued;

(

b) the administration of the estate of a deceased person who was ordinarily resident or domiciled in British Columbia at the date of the person's death;

(

c) the estate situated in British Columbia of a deceased person who was not ordinarily resident or domiciled in British Columbia at the date of the person's death.

Vesting of property on death

(1) On the death of a person, the deceased person's estate vests in the court if

(

a) the estate is an intestate estate, or

(

b) an executor is not named in the deceased person's will.

(2) The estate of a deceased person vests in the person's personal representative when the personal representative assumes or is appointed to that office.

Administration pending legal proceedings

(1) The court may appoint a person as the administrator of the estate of a deceased person pending a proceeding

(

a) in which the validity of the will of the deceased person is in issue, or

(

b) to obtain or revoke a representation grant.

(2) The administrator of an estate

(

a) has all the rights, powers and duties of a personal representative, other than the right to distribute the estate,

(

b) is subject to the control of the court and must act under its direction, and

(

c) is entitled to reasonable compensation under the Trustee Act or as otherwise determined by the court.

Renunciation of executorship

(1) A person named as executor in a will may renounce his or her appointment as executor.

(2) The renunciation of executorship, unless a court otherwise orders, terminates the executorship of the person renouncing it, and the administration of the estate passes as if the person had never been appointed executor.

Forfeiture of executorship

105 If an executor

(

a) survives the will-maker and dies without being granted probate, or

(

b) is required to take probate and does not appear,

the appointment of the executor terminates and the administration of the estate passes as if the person had not been appointed as executor.

Opposition to issue of representation grant

106 A person may, in accordance with the Rules of Court, oppose the issue of a representation grant.

Executor not joining an application

107 If an executor does not join an application for a grant of probate or administration with will annexed, the executor is not liable in respect of assets of the estate coming into the hands of a co-executor, an alternative executor, an administrator with will annexed or a declarant named in the representation grant, whether or not power is reserved to the executor to apply for a subsequent representation grant.

Requirement to accept executorship or to explain

108 If an executor named in a will does not apply for probate of a will, any person interested in the estate may, in accordance with the Rules of Court, require the executor to

(

a) accept or renounce probate of the will, or

(

b) explain why administration of the deceased person's estate should not be granted to the executor and why executorship should not be granted to another person who is willing to act as executor.

Division 2 – Small Estate Administration

Small estate – leaving a will

(1) If a person dies leaving a small estate and a will respecting all or part of the estate, a person referred to in subsection (2) becomes the personal representative of the deceased person by

(

a) giving notice, in accordance with the Rules of Court, of the proposed filing of a small estate declaration, and

(

b) filing a prescribed small estate declaration with a registrar of the court, accompanied by prescribed documents.

(2) Only the following persons may file a small estate declaration under subsection (1):

(

a) the executor named in the will;

(

b) if no executor is named in the will, or if the executor named in the will has renounced executorship or has died, or if there is no executor who is mentally capable of making the small estate declaration

(

i) a beneficiary under the will, or

(ii) any other person, with the written consent of every beneficiary, and in the case of a partial intestacy, with the written consent of every beneficiary and every intestate successor;

(

c) the Public Guardian and Trustee, whether or not a small estate declaration could be filed by a person referred to in paragraph (

a) or (

b) of this subsection.

Small estate – no will

(1) If a person dies leaving a small estate and no will, a person referred to in subsection (2) becomes the personal representative of the deceased person by

(

a) giving notice, in accordance with the Rules of Court, of the proposed filing of a small estate declaration, and

(

b) filing a prescribed small estate declaration with a registrar of the court, accompanied by prescribed documents.

(2) Only the following persons may file the small estate declaration under subsection (1):

(

a) the surviving spouse of the deceased person;

(

b) if there is no spouse, or with the written consent of the spouse, an intestate successor;

(

c) any other person, with the written consent of every intestate successor;

(

d) the Public Guardian and Trustee, whether or not a small estate declaration could be filed by a person referred to in paragraphs (a), (

b) or (

c) of this subsection.

No security

111 A declarant is not required to provide security for the administration of a small estate.

Prohibitions on filing small estate declaration

(1) A declarant must not, in respect of the estate of a deceased person, file a small estate declaration with a registrar of the court

(

a) within 21 days of the date of the deceased person's death,

(

b) within 10 days of the date the notices of the proposed filing of the small estate declaration are given,

(

c) if a grant of probate or administration of the estate of the deceased person has been issued in British Columbia, and has not been revoked,

(

d) if an application is pending in British Columbia for a grant of probate or administration of the deceased person's estate,

(

e) if a small estate declaration has already been filed with a registrar of the court with respect to the deceased person's estate, or

(

f) if the issue of a representation grant has been opposed and a record of the opposition has been filed with a registrar of the court and is in effect.

(2) A declarant, other than the Public Guardian and Trustee, must not file a small estate declaration with a registrar of the court if the declarant knows neither the whereabouts nor the address of the person to whom notice of the proposed filing of the small estate declaration must be given.

(3) A small estate declaration that is filed contrary to subsection (1) is of no effect and the declarant must promptly return the declaration to the registrar of the court with which it was filed under

section 109 (1) (b) [small estate – leaving a will] or 110 (1) (b) [small estate – no will] .

Effect of filing small estate declaration

113 On filing a small estate declaration with a registrar of the court, the declarant becomes the personal representative of the deceased person.

Supplementary declaration

(1) Subject to subsection (2) and to

section 115, if after filing a small estate declaration the declarant becomes aware that the small estate declaration is inaccurate or deficient, the declarant must file with the registrar of the court with which the small estate declaration was filed under

section 109 (1) (

b) or 110 (1) (

b) a prescribed supplementary statutory declaration correcting the error or deficiency.

(2) A supplementary statutory declaration referred to in subsection (1) does not need to be filed only to list an additional asset or combination of assets if

(

a) the asset or the combination of assets has a value of less than a prescribed amount, and

(

b) the declarant was not aware of the asset or the combination of assets when the small estate declaration was filed.

Termination of authority if small estate value exceeded

(1) Unless the court otherwise orders, the authority of a declarant to administer a small estate that is the subject of a small estate declaration terminates, except for the purpose of preserving the estate, if, after the declarant files a small estate declaration,

(

a) land, as defined in subsection (2), is found to be part of the estate,

(

b) personal property is discovered to be part of the estate and its value, when combined with the value of the estate disclosed in the small estate declaration, results in an estate of a value greater than the amount prescribed for small estates, or

(

c) the fair market value of the personal property disclosed in the small estate declaration is found to have been greater, at the time of the deceased person's death, than the amount prescribed for a small estate.

(2) In subsection (1), "land" does not include a manufactured home situated on land not owned by the owner of the manufactured home unless an agreement that the manufactured home is part of the land has been filed in accordance with

section 23 (2) [manufactured home on rented pad] of the Manufactured Home Act.

(3) In any of the circumstances set out in subsection (1), the declarant must promptly return the small estate declaration to the registrar of the court with which it was filed under

section 109 (1) (

b) or 110 (1) (b).

(4) An application to the court under this

section must be filed with the registrar of the court with which the small estate declaration was filed under

section 109 (1) (

b) or 110 (1) (b).

Termination by court

(1) The court may, on application by a person interested in a small estate or by the Public Guardian and Trustee, terminate the authority of the declarant on the same grounds as are specified in

section 158 [application to remove or pass over personal representative] .

(2) If the court terminates the authority of the declarant under subsection (1), the declarant must promptly return the small estate declaration to the registrar of the court with which it was filed under

section 109 (1) (

b) or 110 (1) (b).

(3) An application under subsection (1) must be filed with the registrar of the court with which the small estate declaration was filed under

section 109 (1) (

b) or 110 (1) (b).

Protecting good faith administration

117 If

(

a) a small estate declaration is filed contrary to

section 112 [prohibitions on filing small estate declaration] ,

(

b) a declarant's authority is terminated under

section 115, or

(

c) a declarant's authority is terminated by the court under

section 116,

nothing affects the validity of anything done in good faith by the declarant in relation to the small estate before the declarant became or ought to have become aware of the facts referred to in

section 115 (1) (a), (

b) or (

c) or before the declarant's authority is terminated by the court.

Declarant's accounts

(1) The declarant of a small estate must

(

a) keep a written account of all receipts and disbursements relating to the administration of the small estate, and

(

b) on the request of a beneficiary or an intestate successor in relation to the small estate disclose the account to that person.

(2) If a declarant does not keep or disclose an account in accordance with subsection (1), a beneficiary or intestate successor may apply under the Trustee Act for an order requiring the declarant to pass and disclose accounts in the same manner as an executor, administrator or trustee.

(3) Section 99 of the Trustee Act does not apply to a declarant unless an application is made under subsection (2) of this section.

Offence and penalty

119 A declarant who

(

a) files a false small estate declaration that is intentionally inaccurate, misleading or incorrect,

(

b) files with a registrar of the court a small estate declaration the declarant knows or reasonably ought to know is contrary to

section 112 [prohibitions on filing small estate declaration] ,

(

c) conceals, converts or otherwise misappropriates property belonging to the estate of a deceased person in respect of whose estate a small estate declaration is filed, or

(

d) does not return a small estate declaration in accordance with

section 112 (3), 115 (3) or 116

(2) commits an offence and is liable to a fine of a prescribed amount not exceeding $20 000 or to imprisonment for not more than 12 months, or to both.

Civil remedies preserved

120 Nothing in this Part detracts from any civil or other remedy at law that a declarant may have against another person or that another person may have against a declarant.

Division 3 – Application for Grant of Probate or Administration

Notice of proposed application for grant of probate or administration

(1) An applicant for a grant of probate or administration must give notice of the proposed application to the persons referred to in the Rules of Court.

(2) An applicant or personal representative who, in accordance with the Rules of Court, makes reasonable efforts to discover the existence, identity or whereabouts of persons to whom the notice under subsection (1) is required to be given, but is unsuccessful, is not liable for any loss or damage arising from not giving the required notice except for claims

(

a) to recover property or enforce an order, or

(

b) under Division 6 of

Part 4 [Wills] .

Application for probate or administration – disclosure

(1) An applicant for a grant of probate or administration must

(

a) make a diligent search and inquiry to find the property and liabilities of the deceased person, and

(

b) disclose information as required under the Rules of Court concerning the property of the deceased person, irrespective of its nature, location or value, that passes to the applicant in his or her capacity as the deceased person's personal representative, unless

(

i) the deceased person was not domiciled or ordinarily resident in British Columbia at the time of death,

(ii) the property or liability is situated outside British Columbia, and

(iii) the property or liability has been, is being, or will be administered by a foreign personal representative or otherwise under the law of a foreign jurisdiction.

(2) For the purposes of subsection (1), "foreign personal representative" may include the applicant.

(3) The applicant for a grant of probate or administration must file with a registrar of the court a prescribed form with respect to complying with the requirements of this section.

Production of documents and property

(1) The court may order a person having control or possession of the following to produce and bring all or any of them to the court or place directed by the court:

(

a) a testamentary instrument or purported testamentary instrument, including a record as defined in

section 58 (1) [court order curing deficiencies] ;

(

b) a document relating to an estate;

(

c) property belonging to an estate;

(

d) a representation grant.

(2) If there are reasonable grounds to believe that a person has knowledge of anything referred to in paragraphs (

a) to (

d) of subsection (1), the court may order the person to attend for examination.

Opportunity for Public Guardian and Trustee to comment

(1) If the Public Guardian and Trustee has, in accordance with the Rules of Court, been given notice of an application for grant of probate or administration, the court must not issue the grant of probate or administration unless

(

a) the applicant provides to the court the written comments of the Public Guardian and Trustee, or

(

b) the court is satisfied, in an additional application made with reasonable notice to the Public Guardian and Trustee, that it is necessary or appropriate to issue the grant before the Public Guardian and Trustee gives written comments.

(2) The applicant must, with respect to an application for grant of probate or administration under subsection (1), provide a copy of the grant of probate or administration to the Public Guardian and Trustee within 45 days after it is issued.

Direction by Public Guardian and Trustee – sealed applications

(1) The Public Guardian and Trustee may, whenever the Public Guardian and Trustee considers it appropriate to do so, direct that an application by the Public Guardian and Trustee for grant of probate or administration be sealed by a registrar of the court.

(2) On receipt of a direction under subsection (1), the registrar of the court must

(

a) seal the court file respecting the application and related material specified by the Public Guardian and Trustee, and

(

b) prohibit access to the file except as permitted

(

i) by the Public Guardian and Trustee, or

(ii) by the court.

(3) The sealing of a court file under subsection (2) does not prohibit the disclosure that there is an application for grant of probate or administration or the date of death of the deceased person.

(4) An application and file to which this

section relates must be sealed and remain confidential for 180 days from the date the application was filed with the registrar of the court, unless the Public Guardian and Trustee or the court authorizes all or part of the court file to be disclosed.

(5) A person may apply to unseal a file that has been sealed under subsection (2) and must give notice of the application to the Public Guardian and Trustee in order to provide the Public Guardian and Trustee with the opportunity to make submissions on the application.

(6) The court may, on application by the Public Guardian and Trustee, direct that a file to which this

section applies remain sealed for one or more additional periods not exceeding in total 18 months.

(7) A person who, without the consent of the Public Guardian and Trustee or the court, knowingly discloses any information that the person knows or reasonably ought to know is information in a sealed file, commits an offence and is liable to a fine of not more than $10 000 or to imprisonment for not more than 12 months, or to both.

(8) This

section applies despite any enactment to the contrary.

Public Guardian and Trustee to pay beneficiaries and intestate successors directly

(1) The Public Guardian and Trustee must distribute an estate directly to any beneficiary or intestate successor to whom all or part of the estate is to be distributed, as the case may be, unless the Public Guardian and Trustee otherwise decides.

(2) Subsection (1) does not apply to a distribution of an estate to a guardian of a minor or guardian or committee of a person incapable of managing their affairs.

(3) Subsection (1) applies despite any direction, authorization, power of attorney, agreement, assignment of rights or otherwise to the contrary.

Immunity for Public Guardian and Trustee

(1) Subject to subsection (2), no legal proceeding for damages lies or may be commenced or maintained against the Public Guardian and Trustee or an officer or employee of the Public Guardian and Trustee because of anything done or omitted

(

a) in the performance or intended performance of any duty under

section 125 or 126, or

(

b) in the exercise or intended exercise of any power under

section 125 or 126.

(2) Subsection (1) does not apply to a person referred to in that subsection in relation to anything done or omitted by that person in bad faith.

(3) Subsection (1) does not absolve the Public Guardian and Trustee from vicarious liability arising out of anything done or omitted by a person referred to in that subsection for which the Public Guardian and Trustee would be vicariously liable if this

section were not in force.

Security for administration of estates

(1) No security for the administration of an estate is required to be provided by an applicant for a grant of administration unless

(

a) a minor or a mentally incapable person without a nominee is interested in the estate, or

(

b) the court, on application by a person interested in the estate, requires security.

(2) If the court is satisfied that a condition of any security of an assignable nature provided under subsection (1) has been breached, the court may order that the registrar of the court or the person to whom the security has been given assign the security to a person named in the order.

(3) A person to whom security is assigned under subsection (2) or the personal representative of that person

(

a) may sue in that person's own name or as the personal representative, as the case may be, and

(

b) is entitled to the amount recoverable for a breach of a condition of the security as trustee for all persons interested.

Division 4 – Grant of Probate or Administration

Grant of probate or administration

(1) The court may grant probate of a will or administration of an estate for general, special or limited purposes on proof

(

a) of the validity of the deceased person's will or that the deceased person died without a will, and

(

b) that the deceased person was ordinarily resident or domiciled

(

i) in British Columbia at the time of his or her death,

(ii) outside British Columbia at the time of his or her death and left property in British Columbia, or

(iii) outside British Columbia at the time of his or her death and the personal representative will be a party to an action commenced in British Columbia.

(2) The court may grant probate of a will o