Difference between revisions of "Further Topics and Overlapping Legal Issues in Family Law"
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Desy Wahyuni (talk | contribs) |
Mark Norton (talk | contribs) (changed dead person to deceased person. inserted referece to will challanges being called wills variation. pointed out WESA sections on intestacy) |
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==Wills and estates issues== | ==Wills and estates issues== | ||
''Wills and estates'' refers to the area of law that deals with the drafting and interpretation of wills, how a | ''Wills and estates'' refers to the area of law that deals with the drafting and interpretation of wills, how a deceased person's estate is distributed when there is a valid will, how a deceased person's estate is distributed when there isn't a valid will, and how certain relatives can challenge a deceased person's will. In family law, issues concerning a person's will most often arise when a couple have separated or are getting a divorce. | ||
Making, changing, revoking, and enforcing wills are governed by the provincial ''[http://canlii.ca/t/8mhj Wills Estates and Succession Act]'' ("WESA"). Section 37 sets out the basic requirements for a valid will: | Making, changing, revoking, and enforcing wills are governed by the provincial ''[http://canlii.ca/t/8mhj Wills Estates and Succession Act]'' ("WESA"). Section 37 sets out the basic requirements for a valid will: | ||
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<blockquote><blockquote><tt>(c) signed by 2 or more witnesses in the presence of the will-maker.</tt></blockquote></blockquote> | <blockquote><blockquote><tt>(c) signed by 2 or more witnesses in the presence of the will-maker.</tt></blockquote></blockquote> | ||
British Columbia courts have said that people are presumed to have a moral duty to provide for members of their immediate family. Under WESA, spouses and children who have not been provided for in a will are able to challenge the will and ask the court that they be included and receive a share, or a bigger share, of the dead person's estate. | British Columbia courts have said that people are presumed to have a moral duty to provide for members of their immediate family. Under WESA, spouses and children who have not been provided for in a will are able to challenge the will and ask the court that they be included and receive a share, or a bigger share, of the dead person's estate. This is often referred to as a variation of a will. | ||
A person who dies without leaving a will is said to die ''intestate''. If a person dies intestate, their assets are dealt with according to the terms of WESA. This law requires a person's estate to be distributed in a certain way, with the surviving spouse receiving a first, fixed share of the estate, which is adjusted if the surviving spouse is not the other parent of the deceased's surviving children, and the remainder being split with any surviving children. | A person who dies without leaving a will is said to die ''intestate''. If a person dies intestate, their assets are dealt with according to the terms of WESA. This law requires a person's estate to be distributed in a certain way, with the surviving spouse receiving a first, fixed share of the estate, which is adjusted if the surviving spouse is not the other parent of the deceased's surviving children, and the remainder being split with any surviving children (sections 20 to 23 of WESA). | ||
If a person dies without a will, only people who qualify as the person's spouse and children can benefit from the provisions of WESA. If the dead person had been married or in a marriage-like relationship which either party had terminated prior to the first person’s death, the former spouse can’t make a claim under the act. | If a person dies without a will, only people who qualify as the person's spouse and children can benefit from the provisions of WESA. If the dead person had been married or in a marriage-like relationship which either party had terminated prior to the first person’s death, the former spouse can’t make a claim under the act. | ||