LIBRARY

Participants:

Announcer

Zack Spencer

Elyssa Lockhart

Leah Donaldson

[Audio Length: 00:05:07]

RECORDING COMMENCES:

Announcer:

And now, it’s the Law Show on CISL650, a comprehensive look at everything you need to know about the law.

Zack Spencer:

Now, we have recently, I think as of 2014, have a new set of guidelines for estate law. Can you explain what that is and what it looked like before and how it looks now?

Elyssa Lockhart:

Right. In March of 2014, we finally, after many years of drafting, passed what we call WESA, the Wills Estates Succession Act. It’s specific to BC statute. It’s not federal. It’s provincial. Prior to WESA, we had several different statutes that all covered the ground that WESA now covers as one omnibus type of umbrella statute. Pre-WESA, many of our statutes were significantly long in the tooth. They were dating back to times when assets were of a different value. Our social understandings were different. For instance, in the event that a person passed without a will, there was a provision that the spouse would receive the first $65,000 of a deceased person’s estate, and the remainder would be split between the spouse and the children. That $65,000 was intended to make sure that the wife could stay in the marital home if the husband passed first without a will.

Zack Spencer:

When was that written?

Elyssa Lockhart:

That was written a long time before the last few years of real estate in the GVRD. That’s for sure. That was one of the reasons that WESA was brought in, was to modernize. We also wanted to normalize with other provinces, provincial legislation, and make sure that people could expect what they saw in other provinces to happen after death here in BC, if we liked those things. There are certain things we did differently, but it changed the game and there’s a lot of things that we might have been raised with believing, this is what happens when I pass away, that are now different under WESA.

Zack Spencer:

As a lay person, the way I understand it is that you couldn’t leave people out. Is that true? Is that just a misunderstanding?

Elyssa Lockhart:

It is a misunderstanding, I think, and I hear people—clients come in all the time and they say, my last will, I was told to leave $100 or $1,000 to each of my children, or to everyone. That’s not accurate. $100 or $1,000 is, the difference between the two is irrelevant. What we’re doing there is, we’re identifying within the document the fact that we haven’t merely forgotten to name a child. I’m sure Leah would see cases where the child who’s been left out would argue, it was simply a clerical oversight. Dad forgot to name all of us. Correct?

Leah Donaldson:

Yes. There is the variation provision. It used to be a separate act, the wills variation act. It is now part of WESA. Yeah, the fact that you’ve left $100 or $1,000 doesn’t negate an obligation to a child or a spouse, which is what that section of the WESA provides.

Zack Spencer:

Let’s ramp it up to a bigger number here. You sell a house for $1 million and you’ve got two children, and you leave it to one and the other gets nothing. Is that allowed?

Elyssa Lockhart:

It is. It’s not as easy as an equal division. Certainly, there are a number of documents that I might talk with clients and put in place to paper the intent behind it, the rationale behind it. What I always say to clients is, I have three children, and they’re a little on the young side for me to identify where they’re going to go in their life, but let’s say that one of them is gifted and becomes a surgeon, a specialist, and is making a lot of money per year. The other one absolutely loves children. She goes into early childhood education and she self-actualizes every day. She loves her job, but she comes home and she knows that she’ll never make that amount of money.

Then, let’s say the third one is disabled or held back for any reason, and that’s not the case for me, thankfully, yet, but it could happen at any time when we don’t really know what’s going to happen at the end of today. When I look at that, is it equitable and fair for me to divide my estate three ways equally? Does that surgeon child need as much as my disabled child? Or even, would it change her life as much as it would change my early childhood educator child who’s running a daycare out of her home, perhaps? Or working for a daycare and loves what she does, but simply doesn’t have the ability to provide for her family and pay for education for her children with as much ease as my oldest? Equality and equity are not always linked.

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