DYING WITH NO WILL IN BRITISH COLUMBIA

BY W. GORDON McOUAT, B.A. LL.B.

A Will is one of the most important of all legal documents.  You can only make a Will during your lifetime and while you are physically capable and mentally competent to do so.  But many people postpone the making of a Will for a variety of reasons, and some never get around to doing so.

There are three basic matters that you alone can take control of by making your Will.  These are:

1. The appointment of an Executor or Executors--the person or persons you have chosen
   to take care of your affairs after you die, and to carry out the terms of your  Will;
   
2. The appointment of a guardian or guardians to assume responsibility for your minor child or children until your child or children attain the age of majority; and
   
3. How and to whom your assets will be distributed after your death.

What happens if you die without a Will?

If you own property and die without a will you are said to have died "intestate".  The administration and distribution of your estate and the guardianship of your children will be determined in accordance with legislation, with the possible intervention of the courts.

1. No Executor:

As you did not appoint an Executor (because you had no Will) your Estate will have to be handled by an "Administrator".  It may be that your survivors will agree on a person to assume that responsibility and consent to his or her appointment by the Court.  Or it may be that there will be a dispute among your survivors as to who should become Administrator.  Or it may be that all of your survivors are minors and unable to execute a consent.  In any event, an application will have to be made to the Supreme Court of British Columbia for the appointment of an Administrator, and if there is a dispute, or if the survivors are minors, a Judge will decide who the Administrator will be.  The Administrator may have to provide an Administration Bond to secure the proper administration of your Estate.  All of the foregoing will cost your Estate money, and the result may well be that the last person you would want to look after your affairs may be appointed to take charge of them.

2. No Guardian:

Similarly, someone may come forward to be appointed Guardian of your minor child or children who may or may not be the person whom you would have chosen.  Again, there may be a dispute (for example, between two sides of a family) and the Court may have to make a decision, once more at extra cost to your estate, including the possibility of a security bond.  It may even be that the Public Guardian and Trustee, a government appointed official may end up in charge of your child or children.  As in the case of the Administrator, the last person you may want to take care and control of your child or children may be appointed to that position.

3. Legislated Disposition of your Estate:

If you die intestate, there are arbitrary rules set out in the Estate Administration Act that determine to whom your Estate is distributed, depending on the situation as to the relationship to you of your survivors.  This can get quite complex and is addressed in more detail in Part 2 of this article Legislated Estate Disposition.

Conclusion:

All of the foregoing information clearly shows how many problems can be created by your failure to exercise your right and your obligation to make a Will. 

Not only do you need a Will if you are married or if you are living in a common law relationship, but also your spouse needs to make a Mutual Will.  In that situation both Wills will provide the same result, regardless of the order of death, or if you should both die in the same disaster.  Clearly both spouses need a Will.

The website www.willsandlegalforms.com provides over 40 different Will Forms for married, single, widowed, divorced, common law and same sex couples.  The site describes situations where a Will Form may not be appropriate and where the advice of a lawyer should be sought.  But in the vast majority of cases, the Will Forms offered at www.willsandlegalforms.com will serve the purpose and you will avoid the unexpected and unwanted consequences of dying without a Will.