WESA – Legislative Update

The long-awaited Wills, Estates and Succession Act is now anticipated to come into force in the early months of 2013. The WESA will apply to everyone who dies after it comes into force, regardless of when they drafted their will. The WESA is significantly different from previous legislation, so it is imperative that wills being drafted today take this new legislation into account.

Survivorship

Today, if two people die together, the law presumes that the youngest outlived the other. This means that if they jointly own property, the property will pass to the youngest and then will be distributed under his/her will.

Under the WESA, the presumption of order of death is abolished and joint tenancies are deemed to be severed. People who die together are both presumed to have survived the other and they will each take their share of joint assets into their own estates.

Marriage

The Wills Act currently revokes your will when you get married, so that your spouse is not treated unfairly by a will you made before the relationship became serious. The WESA abolishes this and your earlier will is now going to remain in force until you make a new will. Without a new will, your spouse will have to sue your estate so that it can be varied to include him/her.

Separation

Today, if spouses obtain an order for judicial separation and then reconcile, wills drafted before the separation can still be effective in transferring assets to the surviving spouse if one dies. Under the WESA, a separation forever nullifies testamentary gifts to a spouse, whether the couple later reconciles or not. Even though you may be happily coupled at the time of your death, your spouse will be disinherited if you have not renewed your will after the reconciliation.

Also under the WESA, a judicial order is not required to evidence a separation of married spouses. Separation will be a question of fact, taking into account the length of separation (two years or more), intention of the parties and any triggering events under relevant family law statutes.

Common Law Relationships

The WESA recognizes common law partners as legal spouses after two years of cohabitation. After two years of cohabitation, common law partners have the same entitlement to apply to vary your will as a married spouse would. If either common law spouse terminates the relationship, entitlements under the WESA end on that date.

Has your estate planner discussed the WESA with you?

These issues are only a sampling of the important changes included in the WESA. Wills drafted without an awareness of the impacts the WESA will bring are unlikely to meet your estate planning goals.