Dying Without a Will in British Columbia – Intestacy
We, as humans, tend to project our greatest fears onto the things we don’t understand and often presume the worst-case scenario. In saying that, I mean it is commonly believed that if a person dies without having a will, the entire estate is taken by the provincial government. However, the reality is far more structured and much more complex.
In British Columbia, the Wills, Estates and Succession Act (WESA), governs how estates are managed and distributed upon death. Part 3 of WESA sets out the mandatory distribution scheme which determines how the estate is to be distributed when an intestate dies leaving:
- A spouse and no surviving descendants:
– The entire estate must be distributed to spouse (section 20 of WESA);
- A spouse and surviving descendants (descendant being of both deceased and surviving spouse):
– Spouse: $300,000 preferential share (section 21(3) of WESA); household furnishings (section 21(2) of WESA); and right to acquire spousal home within 180 days after the representation grant (section 27(2) of WESA)
– Residue: half to spouse and half to intestate’s descendants (section 21(6) of WESA).
- A spouse and descendants not common to intestate and spouse:
– Spouse: $150,000 preferential share (section 21(4) of WESA); household furnishings; and right to acquire spousal home within 180 days after the representation grant
– Residue: half to spouse and half to intestate’s descendants.
- Multiple spouses:
– Spousal share divided as agreed between them or if an agreement cannot be reached, as determined by the court (section 22 of WESA). - Surviving descendants but no spouse:
– Equally amongst all descendants (section 23(2) of WESA).
What’s Escheat?
If someone dies without a will and has no living relatives, their property undergoes “escheat,” meaning it passes to the provincial government under section 23(2)(f) of WESA. However, individuals with a moral or legal claim to the estate may apply to the Lieutenant Governor under the Escheat Act (R.S.B.C. 1996, c. 120) to request the return of some or all the property.
Presumption against Intestacy
The presumption against intestacy is a judicial principle that the courts follow when dealing with cases related to the interpretation of wills. In essence, it means that if a will is unclear or can be interpreted in two different ways, the court will follow the one that will result in the full distribution of the estate rather than following the rules of the intestacy. However, this golden rule doesn’t exist without limitations. In the case of The Estate of Lorne A. Campbell, 2005 BCSC 1561, the court noted that an intestacy may be found when it becomes apparent that the testator simply did not think about the circumstances that may arise in the future and found that the will was silent about the matters in issue.
To avoid any misinterpretations or challenges to your will in the future, please contact Carter Litigation for guidance related to your will.
To avoid any misinterpretations or challenges to your will in the future, please contact Riya Singh.