Family law is one of those areas that touch on many different issues from child custody, division of assets, tax and estate planning.  The lawyers at  Henderson Heinrichs practice exclusively in the area of family law and one of the issues they see all the time is the affect a change in family status can have on a client’s will.

If you are getting married, separated or divorced, it’s time to think about your will. The laws of British Columbia with regard to familial relations and wills and estates interact in a way that you need to be aware of if you want to make sure that wishes are honoured if you pass away.  – Joseph Broadhurst,  Henderson Heinrichs, Lawyers

We asked Joe to highlight some of the common issues you need to consider when you change your family status.  While Joe notes that every fact situation is unique and you should always consult a family lawyer qualified in your jurisdiction the following basic issues arise in BC:

If you are getting Married:

Wills in BC are governed by the Wills Act.  Under section 15 of the Wills Act, your will is revoked if you get married, unless your will specifically contemplates your upcoming marriage.  If your will is revoked and you pass away, it will be as though you died with no will at all, and your property will be distributed according to the Estate Administration Act.  There are at least two disadvantages to this situation.  First, if you die without a will (also known as dying intestate) a court application is required to appoint an administrator for your estate.  This process is both more costly and time consuming than having your property distributed under a valid will.  Second, the Estate Administration Act, Part 10 provides set formulas for distributing your property which may not match your wishes or be suitable for your family situation.  So if you get married, make sure you revisit your will if you want your final wishes to be respected.

If you are getting Divorced:

Unlike getting married, getting divorced does not cancel your will.  However, it can change your will.  Any parts of your will that name your former spouse as executor or as a beneficiary of your estate are cancelled.  The division of your estate can be complex and unpredictable if these portions of your will are cancelled.  If you are getting divorced and you named your former spouse in your will, you should seriously consider getting a new will.

If you are separated and planning on getting Divorced.

The process of getting divorced can often take some time (and in most cases takes at least a year).  Even if you are separated from your spouse and have started divorce proceedings, your will is still valid.  If you are separated but not divorced and do not have a will, a substantial portion of your estate will go to your spouse if you pass away before getting divorced.  Under both of these circumstances, you should consider immediately getting a new will which explicitly sets out that you are making the will with your impending divorce in mind, and which reflects your wishes.

If you have questions about how your change in status affects your will and what you can do to arrange your affairs to make sure your loved ones are protected you are welcome to call Joe Broadhurst or any of the lawyers at Henderson Heinrichs (604.669.3500) or visit their website at bcfamilylawyers.com.

Recently a number of callers have asked about probating a will.  To help readers understand probate in general terms we asked Brian Loughlin of LawOne member firm RDM Lawyers to answer a few basic questions.  The results are below and if you have further questions you are welcome to contact Brian at your convenience.

LawOne:  What exactly is probate?

BL: Probate is a legal procedure where your Will is approved and the appointment of your executor is confirmed by the courts under BC legislation.  Your executor is the person responsible for making sure debts existing at the time of your death are settled and the wishes set out in your Will are carried out.

LawOne:  Is probate necessary in every case?

BL:  That depends on factors such as the simplicity of the estate, the character and value of the assets and the number of dependants in your Will.  It may be that your Will does not have to be probated, although very often, whether it is by choice or circumstance, a Will may end up being probated.

LawOne:  Why would an executor want a Will probated?

BL: There are a number of reasons. For example, if the executor has not been through the legal confirmation process (i.e., probate), third parties such as government agencies and banks can, and often do, refuse to recognize the executor’s authority until the courts have validated the Will.  This can slow down the distribution of assets to beneficiaries. Whenever a Deceased’s estate holds land a probate will be necessary. There are also some situations where applying to probate a Will may be advantageous.

LawOne:  Can you give an example?

BL:  In British Columbia the time period for commencing an action under the  Wills Variation Act (the “Act”) does not start to run until probate has been issued by the court.  Under s. 3 of the Act if a Deceased’s spouse or child seeks to challenge a Will under the provisions of the Act he or she must start their action within 6 months of the issue of probate (6 months from the date the court approves the Will and confirms the appointment of the executor). If you are an executor your job is to ensure the settlement of the debts of the deceased’s estate and the smooth distribution of assets to beneficiaries under the Will.  Therefore, it’s to your advantage to take steps to confirm the date after which a Will can no longer be challenged so as to avoid any liability attached to incorrect or unjust distribution of the assets under the Will.  Similarly, if you are a person seeking to challenge a Will, determining when probate was issued is critical to establishing whether you are within the limitation period set out in the Act.

LawOne:  Do you really need a lawyer to probate a Will?

BL:  No.  However, probating a Will can be complex and time consuming.  Most executors have other responsibilities and commitments that demand their time and attention.  In addition, an executor can become personally liable for certain obligations if the estate is not administered in accordance with our laws.  Having a lawyer take care of probate and advising with respect to the administration of the estate is one way to help minimize an executor’s personal liability.