Last Will and Testament (British Columbia)
We have just released our long-awaited British Columbia Last Will and Testament Package:
This Will allows you to:
- name someone (Estate Trustee) to administer your estate and transfer your property at death;
- make cash gifts, charitable gifts, and gifts of real or personal property to specific beneficiaries; and
- transfer the residue of your estate (i.e. the left over assets) to your surviving spouse OR to your surviving issue (e.g. children, grandchildren) OR in trust to your surviving spouse with the remainder going to your surviving issue when your spouse passes away.
Remember: this Last Will and Testament is lawyer-prepared, customizable, affordable, and comes with a ton of free guidance (a video tutorial and written guides!). All for just a fraction of the cost a lawyer would charge (which in 2010, was over $344 for a simple Will for just one person: check out page 3 of 6 in this national fee range report).
We are in the process of putting together a British Columbia Last Will and Testament package…but we’re not ready to release it. Why? Because the laws in BC are getting ready to change. That’s right. The old Wills Act (and many other pieces of legislation) are being replaced by the Wills, Estates and Succession Act. The latter Act was passed in 2009 and is set to become law in the fall of 2011 or early 2012. Until it becomes law, we are holding off on releasing a Last Will and Testament package for British Columbia.
Now, what amazes me is that some websites out there (which shall remain nameless) DO offer Last Wills and Testament for BC. So I went ahead and checked them out. What I found was pretty shocking (ok maybe not shocking to you, but still shocking for someone who sells legal forms online). There were terms and provisions in these Will kits that did NOT comply with the law.
Here’s an example. In one Will I saw, there was a provision that said the following (paraphrased): The person making the Will does not want any gift they make to a beneficiary to be included in that beneficiary’s property if that property has to be divided in half with that beneficiary’s spouse upon divorce. OK… so let me explain why this kind of thing doesn’t work in British Columbia.
Under the British Columbia Family Relations Act, RSBC 1996, c. 128, when married couples get a divorce, each spouse is entitled to half of all “family assets” as a tenant in common. A “family asset” is defined under section 58(2) as anything “owned by one or both spouses and ordinarily used by a spouse or a child of either spouse, for a family purpose”. Now, in other provinces such as Alberta and Ontario, property (and income from that property) acquired by a spouse by inheritance is automatically excluded from “family assets” in those provinces (it’s just called “property” in Alberta and “net family property” in Ontario). But the British Columbia Family Relations Act does not say anything about inheritances being excluded. So where does that leave us? Well, at present, as long as inheritances are received by one spouse and ordinarily used for a family purpose, it will be a “family asset” and subject to being divided between the spouses. If it meets that test, a judge will take into account the fact that it was a gift or inheritance when deciding if a 50-50 split of family assets would be unfair: section 65 of the Family Relations Act. Even if a gift or inheritance is not a family asset, it could still be ordered to be shared with the other spouse if the judge decides that fairness requires it. At present, there is debate around whether the Family Relations Act will be amended to exclude certain types of assets – such as property and income received by a spouse as an inheritance – from the definition of “family assets” (and hence will not be split between the two spouses upon divorce).
So, in light of the long explanation above, including a term in a BC Last Will and Testament that tries to get around the definition of “family assets” simply ISN’T LEGAL and won’t hold water in court! So why did they include it in their BC Last Will and Testament? Sloppy due diligence! No one was checking what the laws were in that province! No one wanted to educate the end-user as to why a certain term was in a Will to begin with. If the end-user never asks, never gets educated, and simply ‘goes with it’, then they and their beneficiaries run the risk of having Wills that don’t comply with provincial laws.
So you see…anyone can come up with a template. What really counts is figuring out why a certain term or clause is in the Will and how it can or should be modified. Without this knowledge, the end-user is just throwing away their money blindly.
That’s more or less the same reason we haven’t released a Cohabitation Agreement for British Columbia – because it’s actually not in the parties’ interests to have a written Cohabitation Agreement UNTIL AFTER the Family Relations Act is amended (expected to be soon). Since we take our time here and do the diligence to educate our users, we know that we could get you and ourselves into a lot of hot water by putting shoddy legal forms out there. We care about doing a good job. Just check out some of the table of contents for the DL Guides that come with the legal forms and you’ll get the point…comprehensive…really well researched…well-written…you’re welcome