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A will is one of the most important legal documents a person can sign. Yet many people in British Columbia delay making one because they assume they are too young, do not have enough assets, or believe their family will “work it out” if something happens. In practice, the absence of a will often creates uncertainty, delay, additional expense, and conflict at a time when a family is already dealing with grief.
In British Columbia, if a person dies without a will, their estate is distributed according to the Wills, Estates and Succession Act(“WESA”), regardless of what the deceased may have intended. The legislation determines who may apply to administer the estate, who inherits, and in what proportions. Those default rules may not reflect modern family realities, particularly where there are blended families, step-children, estranged relatives, unequal financial circumstances between children, or specific wishes about family property or businesses.
This becomes especially important in blended families. Under WESA, if a person dies leaving a spouse and children who are not all children of that spouse, the surviving spouse receives household furnishings and a preferential share of the estate, with the balance divided between the spouse and descendants according to the statutory formula. That may be very different from what the deceased intended. A surviving spouse may believe everything should pass to them, while children from a prior relationship may expect to inherit directly. Without a properly drafted will, these competing expectations can quickly become litigation.
A will is also critical for parents of minor children. In British Columbia, a guardian may appoint a person to become a child’s guardian on the guardian’s death, including through a will. If no guardian is appointed, surviving family members may disagree about who should care for the child, and the issue may ultimately require court involvement. A properly drafted will provides guidance at a time when children and family members are most vulnerable.
Even where a person has a will, British Columbia law imposes obligations toward spouses and children. Under WESA s. 60, the court may vary a will if it does not make adequate provision for the proper maintenance and support of a spouse or child. The BC courts have repeatedly emphasized that estate planning must account not only for legal obligations, but also moral obligations to family members. In Bridger v. Bridger Estate, the BC Court of Appeal considered a blended-family estate and confirmed that a will-maker’s obligations must be assessed in light of the realities of the family relationship and the circumstances existing at death.
Importantly, estate planning is not only about death. Incapacity planning is equally important. A serious illness, injury, or cognitive decline can leave a person unable to manage finances or make healthcare decisions long before death occurs. In British Columbia, incapacity planning commonly includes:
- an enduring power of attorney for financial and legal matters;
- a representation agreement for healthcare and personal decisions; and
- an advance directive for medical instructions.
Without these documents, family members may need to apply to court to be appointed as committee of the incapable adult under the Patients Property Act, a process that can be expensive, time-consuming, and stressful.
Modern estate planning must also consider assets that pass outside the estate itself. Joint bank accounts, jointly owned real estate, RRSPs, RRIFs, TFSAs, life insurance policies, and beneficiary designations may bypass the estate entirely depending on how they are structured. Many people assume that adding a child to an account or title is a simple probate-avoidance strategy, but these arrangements can create significant legal and tax complications, including disputes about whether the asset was intended as a true gift or merely held in trust.
The Supreme Court of Canada addressed this issue in Pecore v. Pecore, which remains foundational in British Columbia estate litigation involving joint assets between parents and adult children. The Court confirmed that transfers into joint ownership may give rise to a presumption of resulting trust, meaning the asset may still belong beneficially to the estate unless a true gift was intended. Proper documentation and coordinated estate planning are therefore essential.
A will is part of a broader estate plan that can help:
- reduce uncertainty;
- appoint trusted decision-makers;
- protect children;
- minimize disputes;
- coordinate beneficiary designations and jointly held assets;
- assist with incapacity planning; and
- provide clarity to family members during a difficult time.
For many families, the greatest value of estate planning is not just tax savings or probate avoidance. It is reducing the emotional, financial, and legal burden placed on the people left behind.
Sources:
Wills, Estates and Succession Act, S.B.C. 2009, c. 13, Part 3, Division1 — intestacy distribution rules.
Wills, Estates and Succession Act, S.B.C. 2009, c.13, s. 60 — wills variation where adequate provision is not made for spouse or children.
Family Law Act, S.B.C. 2011, c. 25, ss. 53–57 —appointment of guardian on death and acceptance of appointment.
Patients Property Act, R.S.B.C. 1996, c. 349 —committeeship process for incapable adults.
Bridger v. Bridger Estate, 2006 BCCA 230 — BC Court of Appeal authority on wills variation in a blended-family context.
Picketts v. Hall Estate, 2009 BCCA 329 — BC Court of Appeal authority on wills variation and moral obligations to a long-term spouse.
Pecore v. Pecore, 2007 SCC 17 — leading authority regarding joint accounts, resulting trusts, and whether jointly held assets pass outside the estate beneficially or remain part of the estate.
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