The New Wills Estates and Success Act “WESA”

The substantive law is changing with regard to the presumption of survivorship. WESA contains new survivorship provisions in relation to joint tenancies. There will no longer be a presumption that when people die in circumstances in which it is not possible to determine who died first, the younger is presumed to survive the older (pursuant to The Survivorship and Presumption of Death Act, R.B.C. 1996, c. 444). WESA changes that presumption.

The new rule is that the simultaneous death severs all joint tenancies. Thus, if joint tenants die and it cannot be determined who died first, each joint owner is deemed to have held the property as tenants in common. That will create two estates each of which will need to be probated.

This change will be extremely important in a Will where the spouses (for instance) create “mirrored” substantial gifts of cash. Careful consideration needs to be given to the possibility of both gifts of cash being made. If the clients do not want there to be a chance that both gifts get made, the lawyer will carefully need to draft around that possibility (for example with a top up provision or by making a conditional gift).

This information applies as a general rule but may change depending upon the specific circumstances of your own situation. You should consult a lawyer before acting on any of this information. If you have any questions, please do not hesitate to contact Vanessa DeDominicis directly on 250-869-1140 or [email protected]. Vanessa practices in the area of Wills and Estates with Pushor Mitchell LLP in Kelowna, B.C.

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