Estate Planning Guide for Nanaimo, BC

Estate planning is one of the most thoughtful things you can do for the people you love. Done properly, it ensures your assets go to the right people, your wishes are followed when you can no longer speak for yourself, and the people closest to you are spared unnecessary stress and conflict during an already difficult time.

Done poorly, or not done at all, it can lead to family disputes, costly court proceedings, and outcomes that are the opposite of what you would have wanted.

This guide covers the key elements of estate planning under BC law, including what happens when estate disputes arise, how to make a valid will, powers of attorney, representation agreements, and what happens when there is no plan in place. Whether you are just starting to think about your estate or reviewing a plan you made years ago, this is a practical starting point.

What Is Estate Planning?

Estate planning is the process of organizing your legal and financial affairs so your wishes are carried out both during your lifetime and after your death.

A complete estate plan typically includes:

• A valid will that distributes your assets and names an executor
• An enduring power of attorney that authorizes someone to manage your financial affairs if you become incapable
• A representation agreement that covers your personal care and health care decisions
• Consideration of how specific assets (life insurance, RRSPs, jointly held property) are handled outside of your will

Many people focus on wills and overlook the planning documents that protect them while they are still alive. A good estate plan addresses both.

Estate Law in BC: The Foundation

Estate planning in British Columbia is governed primarily by the Wills, Estates and Succession Act (WESA), which came into force on March 31, 2014. WESA replaced and consolidated several older statutes and modernized estate law for BC residents, including clearer rules for blended families, common-law relationships, and what happens when someone dies without a will.

If you made a will before WESA came into force, that will is still valid, but it will be interpreted under the new rules. It is worth reviewing any older estate planning documents with a lawyer to make sure they still reflect your intentions.

Part 1: Estate Litigation in BC

When families find themselves in conflict over a deceased person’s estate, the consequences can be costly and emotionally draining. Estate litigation in BC covers a broad range of disputes, from challenging the validity of a will to addressing the conduct of an executor who is not fulfilling their responsibilities.

Understanding that these disputes exist, and that legal remedies are available, is one of the most important aspects of estate planning, whether you are protecting your own future estate or responding to a situation that has already arisen.

Will Challenges: Questioning the Validity of a Will

A will challenge is a formal legal proceeding that questions whether a will should be recognized as valid. In BC, the most common grounds for challenging a will are:

Lack of testamentary capacity: The will-maker did not fully understand what they were doing at the time the will was signed, the nature and extent of their assets, or the people who might reasonably expect to benefit from their estate.

Undue influence: The will-maker was pressured, manipulated, or coerced into making a will that does not reflect their own true wishes. This frequently arises in situations where a caregiver, a new partner, or an estranged family member had significant control over the will-maker’s daily life near the end.

Failure to meet formal requirements: The will was not properly signed or witnessed in accordance with WESA. Even a single procedural error can render a will invalid.

If a will challenge is successful, the challenged will may be set aside entirely. The estate would then be distributed either under a previous valid will or, if no valid prior will exists, under BC’s intestacy rules.

Being Disinherited or Cut Out of a Will

In BC, a will-maker generally has the right to leave their estate to whomever they choose. However, if a spouse or child has been disinherited, or cut out of the will without adequate provision for their maintenance and support, they have a legal remedy under Section 60 of WESA.

A wills variation application allows a spouse or child to apply to the BC Supreme Court to have the will varied to provide a fairer distribution. Courts consider a range of factors, including the financial circumstances of the person who was disinherited, the size of the estate, the nature of the relationship with the deceased, and any reasons the will-maker gave for excluding them.

Common-law partners who lived with the deceased in a marriage-like relationship for at least two continuous years may also have a claim against the estate, even if they were not named or were expressly excluded from the will.

Being cut out of a will, or receiving significantly less than expected, does not necessarily mean the situation is final. A lawyer experienced in BC estate litigation can evaluate whether a variation claim or another remedy is available based on your specific circumstances.

Executor Misconduct

An executor is appointed to administer the estate honestly and in the interests of all beneficiaries. When an executor fails to carry out those duties properly, the consequences for the estate and the people entitled to benefit from it can be serious.

Executor misconduct in BC can take many forms, including:

• Failing to properly account for estate assets or provide financial information to beneficiaries
• Unreasonably delaying the administration and distribution of the estate
• Misappropriating estate funds or using estate assets for personal benefit
• Showing improper preference to certain beneficiaries over others
• Failing to protect, insure, or maintain estate assets during the administration period
• Conflicts of interest that affect how the estate is being managed

Beneficiaries have legal rights when an executor is not fulfilling their duties. In serious cases of executor misconduct, the executor can be removed and replaced through an application to the BC Supreme Court. An estate litigation lawyer can advise whether the conduct you are observing rises to the level that warrants legal action, and what remedies are available.

How Fabris Law Approaches Estate Litigation

At Fabris McIver and Durvin, our estate litigation team works closely with our estate planning and probate lawyers. This integrated approach allows us to analyze and address every aspect of trust and estate disputes, from negotiated settlements through to contested proceedings in the BC Supreme Court. Whether you have been disinherited, cut out of a will, or are concerned about executor misconduct or a will challenge, our team is here to help you understand your legal options.

Part 2: Making a Valid Will in BC

What Makes a Will Legally Valid?

Under Section 37 of WESA, a will in BC is valid when it meets all of the following requirements:

• It is in writing
• It is signed at the end by the will-maker (called the testator)
• It is signed in the presence of two witnesses who are both present at the same time
• Both witnesses sign the will in the presence of the will-maker

The will-maker must be at least 16 years of age and must have testamentary capacity, meaning they understand the nature and effect of making a will, the extent of what they own, and the people who might reasonably expect to benefit from their estate.

Witnesses must be 19 years of age or older. A beneficiary named in your will, or the spouse of a beneficiary, should not serve as a witness. Doing so does not invalidate the will itself, but the gift to that witness (or their spouse) is generally void under Section 43 of WESA unless a court orders otherwise. This is one of the most common and costly mistakes people make with do-it-yourself wills.

Does BC Recognize Holographic Wills?

No. A holographic will is a handwritten, unwitnessed will. Unlike some other provinces such as Ontario, BC does not automatically recognize holographic wills as valid. An informal document may still be considered by the court under Section 58 of WESA, which allows a judge to give effect to a document that does not meet the formal requirements if it clearly reflects the deceased’s final intentions, but this requires a court application that is expensive and uncertain.

The safest approach is always a properly drafted and witnessed will.

Does Marriage Revoke a Will in BC?

Not under WESA. For marriages that occurred on or after March 31, 2014, marriage does not automatically revoke a will. This is a significant change from the old law. However, separation or divorce can affect provisions in your will that involve a former spouse, and it is always advisable to review your will after any major life change.

What Should Your Will Include?

A well-drafted will typically covers:

• Who your executor is (the person responsible for administering your estate) and a backup executor
• Who your beneficiaries are and what each person receives
• A residue clause covering anything not specifically mentioned
• Guardianship instructions for any minor children
• Any specific bequests of property, money, or personal items
• Funeral and burial wishes, if you want them documented

It is worth noting that some assets pass outside of a will entirely. Life insurance proceeds with a named beneficiary, registered accounts like RRSPs and TFSAs with named beneficiaries, and jointly held property with right of survivorship all transfer directly and are not governed by your will. A lawyer can help you coordinate these assets with your overall estate plan.

Part 3: What Happens If You Die Without a Will in BC?

Dying without a valid will is called dying intestate. When this happens, WESA determines how your estate is distributed, regardless of what you may have wanted. The formula is fixed and does not account for individual circumstances, family dynamics, or the relative needs of different family members.

Intestate Distribution Under WESA

If you have a spouse but no children: Your spouse inherits your entire estate.

If you have a spouse and children (and all children are also the spouse’s children): Your spouse receives all household furnishings and the first $300,000 of your estate. If the estate is worth more than that amount, the remainder is split equally between your spouse (50%) and your children (50%).

If you have a spouse and children (and some or all children are from a previous relationship): Your spouse receives all household furnishings and the first $150,000 of your estate. The remainder is again split 50/50 between your spouse and your children.

If you have children but no spouse: Your estate is divided equally among your children. If a child has predeceased you, that child’s share passes to their children.

If you have no spouse and no children: Your estate passes up the family tree in order: parents first, then siblings, then other relatives following the specific hierarchy set out in Section 23 of WESA. If no eligible relatives are found within five degrees of relationship, the estate passes to the BC provincial government under the Escheat Act.

Who Counts as a Spouse Under WESA?

WESA defines a spouse as either a legally married partner or a person who has lived with the deceased in a marriage-like relationship for at least two continuous years immediately before the death. This means a common-law partner of two or more years has the same intestacy rights as a legally married spouse.

Why Intestacy Is a Problem for Blended Families

The intestacy formula under WESA is designed for traditional family structures. It can produce unintended and sometimes deeply unfair results in blended families. For example, a surviving spouse may inherit significantly less than expected if there are children from a prior relationship, while those children may receive assets before they are financially ready. A properly drafted will solves these problems by letting you decide exactly who gets what.

Part 4: Varying a Will in BC

Even with a valid will, certain family members have the right to challenge how the estate is distributed.

Under Section 60 of WESA, a spouse or child of the deceased can apply to the BC Supreme Court to vary the terms of a will if it did not make adequate provision for their proper maintenance and support. This is sometimes called a wills variation claim.

A successful application can result in the court rewriting portions of the will. Courts weigh many factors, including the financial circumstances of the applicant, the size of the estate, the nature of the relationship, and the reasons given (or not given) by the will-maker for the provisions they made.

This is another strong reason to work with a lawyer when drafting a will: an estate planning lawyer can help you anticipate potential challenges and structure your estate in a way that reduces the risk of a successful variation claim later.

Part 5: Powers of Attorney in BC

A will only takes effect after your death. But what happens to your financial and legal affairs if you become incapacitated while you are still alive? This is where a power of attorney comes in.

General Power of Attorney vs. Enduring Power of Attorney

In BC, there are two types of power of attorney, both created under the Power of Attorney Act:

General power of attorney: This document authorizes another person (called the attorney) to manage your financial and legal affairs on your behalf. A general power of attorney ends automatically if you become mentally incapable. This makes it suitable for short-term situations (for example, while you are traveling) but not for long-term incapacity planning.

Enduring power of attorney (EPOA): An enduring power of attorney continues to be effective even if you become mentally incapable. This is the document most people need as part of a complete estate plan. Your attorney can pay bills, manage investments, sell property, and handle legal affairs on your behalf if you are no longer able to do so. Importantly, an attorney under an EPOA cannot make a will on your behalf.

An EPOA must be made while you are still capable of understanding what you are signing. Once you lose capacity, it is too late to create one. At that point, a family member or other interested person would need to apply to the BC Supreme Court for committeeship, which is a significantly more expensive and time-consuming process.

Who Should You Appoint as Your Attorney?

Your attorney should be someone you trust completely with your financial affairs. You should also name an alternate attorney in case your first choice is unable or unwilling to act. Consider whether the person you have in mind has the organizational skills, judgment, and availability to manage your affairs if needed.

Part 6: Representation Agreements in BC

A representation agreement is a separate planning document that covers your personal care and health care decisions. It is governed by the Representation Agreement Act in BC, not WESA.

Why a Representation Agreement Is Different from a Power of Attorney

An enduring power of attorney covers your financial and legal affairs. A representation agreement covers decisions about your health and personal care, such as where you will live if you can no longer care for yourself, what medical treatments you will or will not receive, and end-of-life care decisions.

These are two separate documents that serve two different purposes. A complete estate plan includes both.

Section 9 vs. Section 7 Representation Agreements

BC has two types of representation agreements:

Section 9 Representation Agreement (RA9): This is the most comprehensive type. It gives your representative broad authority over health care and personal care decisions. An RA9 can only be created by someone who has full capacity to understand the nature and extent of what they are authorizing.

Section 7 Representation Agreement (RA7): This is a more limited version. It can be created even by someone with reduced cognitive capacity, as long as they meet a lower threshold of understanding. It can cover routine personal care, some health care decisions, and some routine financial matters such as banking and bill payment.

If you are capable and planning ahead, an RA9 combined with an enduring power of attorney gives you the most complete protection.

Part 7: Probate in BC

Probate is the legal process by which the BC Supreme Court confirms that a will is valid and grants authority to the executor to administer the estate. Not every estate requires probate, but it is generally required when the deceased owned real estate solely in their own name or held significant financial assets in their name alone.

Financial institutions and the Land Title Office typically require a grant of probate before they will release assets or transfer property to an executor. The executor named in the will applies to the court, the will is reviewed, and if everything is in order, a representation grant is issued.

If there is no will, a family member or other interested party may apply for a grant of administration, which allows them to administer the estate under the intestacy rules.

Probate fees in BC are calculated based on the gross value of the estate assets that pass through probate. Proper estate planning can sometimes reduce the value of the estate that goes through probate by ensuring assets with named beneficiaries and jointly held property are structured correctly.

Why Estate Planning Matters More on Vancouver Island

Vancouver Island has a large and growing population of retirees. Many residents have significant assets in the form of real property, retirement savings, and business interests that need careful planning. The area’s blended families, agricultural properties, and multi-generational households create estate planning situations that go well beyond what a standard template can address.

Planning early is always better than planning late. The documents that protect you (an enduring power of attorney and a representation agreement) can only be made while you still have capacity. Waiting until a health crisis is too late.

Frequently Asked Questions

How much does it cost to make a will in Nanaimo? The cost of a professionally drafted will varies depending on its complexity. A straightforward will for an individual or couple is typically much less expensive than people expect, and far less costly than the family disputes or court proceedings that can result from an improperly drafted or nonexistent will. Contact Fabris McIver and Durvin for information on fees for your specific situation.

Can I write my own will in BC? Technically yes, but it carries significant risk. A will that does not meet the formal requirements under WESA is invalid. Even a will that is properly signed can create problems if it is unclear, contradictory, or fails to address common situations. Errors in a homemade will are often only discovered after the will-maker has died, when they cannot be fixed. The cost of a lawyer-drafted will is modest compared to the potential cost of sorting out problems later.

What is the difference between an executor and a beneficiary? An executor is the person responsible for administering your estate: gathering assets, paying debts, filing tax returns, and distributing what remains to your beneficiaries. A beneficiary is a person who receives a gift from your estate. The same person can be both an executor and a beneficiary.

Does my will need to be updated after a major life change? Yes. Marriage, separation, divorce, the birth of children or grandchildren, a significant change in your financial situation, or the death of a named beneficiary or executor are all reasons to review and potentially update your will. Under WESA, marriage after March 31, 2014 does not automatically revoke a will, but your existing will may no longer reflect your intentions. It is good practice to review your will every few years regardless of whether your circumstances have changed.

What happens to my RRSP or TFSA when I die? Registered accounts with a named beneficiary do not form part of your estate and pass directly to the named beneficiary outside of your will. If no beneficiary is named (or the named beneficiary has predeceased you), the account may fall into your estate and be subject to probate. Keeping beneficiary designations up to date is an important part of a complete estate plan.

Can a common-law partner inherit in BC? Yes, provided they meet WESA’s definition of a spouse: they must have lived with the deceased in a marriage-like relationship for at least two continuous years immediately before the death. A common-law partner who meets this threshold has the same intestacy rights as a legally married spouse. However, relying on intestacy rules is never as reliable as a properly drafted will that names your partner directly.

What can I do if I was cut out of a will or disinherited? If you are a spouse or child of the deceased and were disinherited or left without adequate provision, you may have a legal remedy under Section 60 of WESA. A wills variation application asks the BC Supreme Court to vary the terms of the will to provide a fairer distribution. Time limits apply, so it is important to speak with a lawyer as soon as possible after learning of your situation.

What should I do if I suspect executor misconduct? If you are a beneficiary and believe the executor is mismanaging the estate, delaying distributions without explanation, or acting in their own interests rather than the estate’s, you have legal options. Beneficiaries are entitled to accounting information and can apply to the BC Supreme Court to compel compliance or, in serious cases, to have the executor removed. Contact a lawyer who handles estate litigation to assess your situation.

Start Your Estate Plan Today

Estate planning does not need to be complicated, but it does need to be done correctly.

At Fabris McIver and Durvin, our wills and estates lawyers have been helping Nanaimo residents and families throughout Vancouver Island protect what matters most since 1980. We advise on all aspects of estate and succession law, including drafting wills, enduring powers of attorney, representation agreements, trusts, and asset protection strategies. Our estate litigation team is also available when disputes arise, whether you have been disinherited, are facing a will challenge, or have concerns about executor misconduct.

Whether you are starting your estate plan for the first time or reviewing documents that have not been updated in years, we are here to help.

Call us at 250-753-6661, toll-free at 1-800-811-3555, or book a consultation online.

This article is intended for general informational purposes and does not constitute legal advice. BC estate law is complex and changes over time. For advice specific to your situation, please consult a qualified legal professional.

Other Areas of Interest:

• Wills and Estates practice area
• Civil Litigation