XPost: bc.politics, van.general, vic.general   
   XPost: nanaimo.general   
   From: {~_~}@nyet.ca   
      
   Special to The Globe and Mail  -  Published Tuesday, Apr. 29 2014   
   Tony Wilson   
      
      
   Why new B.C. law makes a will more important than ever   
      
   Anyone who owns a small or medium-sized business, regardless of age or   
   stake in the company, should give some serious thought to succession   
   planning. Why? Because you never know when you’re going to be hit by a   
   wayward bus. That metaphorical bus could kill you; or worse, could leave   
   you physically or mentally incapacitated.   
      
   It’s fundamentally important to your family, business, and employees,   
   managers and co-owners that the business you’ve helped to create can   
   continue without you.   
      
   Your lawyer, accountant and insurance broker will be able to provide you   
   with a number of options to deal with the possibility of your demise or   
   incapacity. Certainly, you should have a shareholders agreement in place   
   between you and other shareholders to deal with issues such as death or   
   incapacity. In particular, consider a life insurance policy to allow the   
   company to purchase back the deceased’s shares from the estate of the   
   deceased shareholder.   
      
   But the most basic first step that everyone, including business owners,   
   should take is to have a will drafted by a professional. It surprises me   
   how many people I know who still don’t have a will but intend to “get to   
   it one day.”   
      
   Most lawyers recommend clients review their wills every five years, or   
   when their circumstances change, such as the birth of children, deaths   
   in the family or a change in their financial circumstances. In addition   
   to a will, you should also have a power of attorney/representation   
   agreement (it’s called different things in different provinces) to deal   
   with financial and health care matters in the event the metaphorical   
   wayward bus doesn’t kill you, but you become physically or mentally   
   incapacitated.   
      
   If your business is in British Columbia, the law with respect to wills   
   and estates significantly changed on March 31 of this year. The new B.C.   
   Wills, Estates and Succession Act (commonly called “WESA”) makes some   
   substantial changes to the laws of wills and succession in order to   
   modernize the laws. If you live in B.C., its even more important than   
   ever to make a will to ensure your wishes are followed on death   
   including plans for your business continuing after your death.   
      
      
   Mary-Jane Wilson, a wills and estates lawyer at Wilson Rasmussen LLP in   
   Surrey, and author of the British Columbia Probate Kit, advises that   
   WESA has made some significant changes to the law in BC. . . . .   
      
   1. WESA doesn’t invalidate existing wills. Wills properly made prior to   
   WESA coming into effect continue to be valid.   
      
   2. WESA changes the law of intestate succession (if you die without a   
   will).  For example, if the deceased does not have a valid will, the   
   spousal life interest in the spousal home is abolished.  Instead, the   
   spouse will have the right to purchase the spousal home.   
      
   3. The distribution of assets has changed under WESA where there is a   
   spouse and no will. Under the old regime, if there was no will, a spouse   
   received the first $65,000 of an intestate’s estate.  Now the spouse   
   receives the first $300,000 from the estate but if there are children   
   from a prior relationship, the spouse only receives $150,000. Under the   
   old legislation, the closest family members to the deceased shared in   
   the estate if there was no will pursuant to a specific formula.   
   Although this principle remains unchanged, the manner in which the   
   assets are distributed has been significantly modified.  There are now   
   different distribution rules in circumstances where there is no spouse   
   or children.   
      
   4. The new scheme is based on a “parentelic” scheme as opposed to   
   “closeness to blood relations” scheme. Prior to WESA, estate lawyers   
   were required to search all next of kin until an heir was found. Now,   
   the search for an heir stops at the fourth degree of relationship and if   
   no such heirs can be found, the estate will Escheat to the Crown   
   (legalese for “the provincial government gets it”).   
      
   5. Survivorship rules will change. Under the old legislation, in an   
   accident where it was impossible to tell who died first (for example, a   
   car accident or airplane crash) the youngest person who died was deemed   
   to have survived the older person who died.  Under WESA, each person is   
   deemed to survive the other.  Thus in the case of joint tenancy of an   
   asset like land, the asset is deemed to be held as tenants in common and   
   will not pass to the survivor.  But, if the person fails to survive the   
   deceased by five days, they are deemed to have died before the deceased.   
      
   6. Where a witness to a will is also a beneficiary, the gift to the   
   witness is still considered void, but it is possible for the gift to be   
   saved by the courts upon a court application.   
      
   7. To challenge a will based on undue influence, the onus has shifted   
   from the opposing party having to prove undue influence directly, to the   
   beneficiary (this is usually a caregiver) who is claiming that the will   
   is valid, to prove that there was no undue influence.   
      
   8. Marriage no longer revokes a prior will but if a will was revoked by   
   marriage prior to March 31, 2014, it cannot be revived.   
      
   9. Anyone over the age of 16 can now make a will in B.C.   
      
   10. Finally, the Courts in B.C. will now have the power to declare a   
   document, (which does not meet the “formality requirements” of a will),   
   to be an effective will nonetheless. Emails, scraps of paper and DVDs   
   may be considered a will if the court believes that the willmaker   
   intended it to be a will.  A court can only “cure” an invalid will if   
   there is sufficient evidence of the willmaker’s intention, and because a   
   court application will be required, this will add expense to   
   administering an estate; a good reason to have a will drafted now.   
      
   So if you live in B.C., all of these changes to the law are good reasons   
   to get your estate planned, your will drafted and your house in order in   
   case that wayward bus is coming for you.   
   _____________________________________   
      
   Tony Wilson is a franchising, licensing and intellectual property lawyer   
   at Boughton Law Corp. in Vancouver, he is an adjunct professor at Simon   
   Fraser University (SFU), and he is the author of two books: Manage Your   
   Online Reputation, and Buying a Franchise in Canada. His opinions do not   
   reflect those of the Law Society of British Columbia, SFU or any other   
   organization.   
      
   --- SoupGate-Win32 v1.05   
    * Origin: you cannot sedate... all the things you hate (1:229/2)