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WHAT YOU SHOULD KNOW ABOUT WESA

Apr 1 2014

I am often asked to speak to client groups about the effect the Wills, Estates and Succession Act (the “WESA“) will have upon Estate Administration. Although the points below can by no means be considered exhaustive in this regard, they do demonstrate just how broad the changes are.

Probate Rules

In order to give effect to the provisions of the WESA, a new set of probate rules have been brought into force as of March 31st, as well as a new set of court forms that must be used in all future applications. This means that if you are in the process of preparing an application for a Grant of Probate or for Letters of Administration (an “Estate Grant”) you will not be permitted to submit your application using the current forms after Friday, March 28th.

Notice to Beneficiaries

Under the WESA, notice to beneficiaries must be given 21 days in advance of an application for an Estate Grant. Previously, applicants were able to mail notices to beneficiaries, swear the affidavits in support of their application and file their application all on the same day. This is no longer the case.

The WESA also permits electronic notice, which is expected to create efficiencies in estates with foreign beneficiaries, beneficiaries who are travelling abroad or who are for other reasons of no fixed address.

Under the WESA, notice to the Office of the Public Guardian and Trustee is still required in cases involving minor beneficiaries, but new exceptions to this rule have been introduced. Drafting practices commonly employed by estate planning lawyers will often qualify for exemption from notifying the Public Guardian and Trustee.

Access to Information

In recent years applicants have increasingly experienced difficulty in obtaining the detailed financial information of deceased will makers, prior to being granted the legal standing of Executor or Administrator. Because this information is necessary to an Estate Grant application, the WESA addresses this by introducing a court-issued authorization form, instructing financial institutions to release information to the applicant. This will then allow the applicant to complete the Estate Grant application and to be granted legal standing as the Executor or Administrator.

Rectification of Wills

The WESA includes provisions granting the court broad power to rectify errors and omissions often found in wills. Perhaps the most common technical error seen in Canada is a failure to properly execute a will. With the new authority to rely upon extrinsic evidence of a will maker’s intentions, the court will now be able to rectify technical failings of this nature efficiently and more cost-effectively.

Reverse Onus

It is a well-established tenet of our legal system that a person is innocent until proven guilty. The onus of proof is commonly recognized to lie with an accuser rather than with an accused. The WESA reverses this onus when it comes to the question of undue influence. In the event a complaint is made that undue influence was exerted over a will maker AND it can be demonstrated that a person had the opportunity to unduly influence the will maker, then the person accused of unduly influencing the provisions of a will must demonstrate that they are innocent, or risk losing all or a portion of the gifts left to them by the deceased will maker.

Passing of Accounts

Under the WESA, either an applicant or a beneficiary can apply to the court for a passing of accounts. However, under WESA, a beneficiary’s application to court for an accounting must be accompanied by an affidavit setting out the reasons her or she believes one is necessary. This differs from well-established trust laws, which provide that beneficiaries are inherently entitled to an accounting.

These legislative changes are in keeping with those found in other modern legal jurisdictions – but they are not always intuitive and they will take some getting used to. If you are in the process of administering an estate or if you have questions about your pre-WESA will, please contact RDM’s Wills, Trusts and Estates department for more information.

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