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Difference between revisions of "Intestacy (16:VIII)"
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== A. Generally == | == A. Generally == | ||
If a person dies intestate (without a valid will), | If a person dies intestate (without a valid will), their assets are distributed to intestate successors in accordance with ''WESA''. Where a will exists but does not cover all assets, there will be a partial intestacy and those assets outside the will that do not pass by contract or survivorship will pass according to ''WESA''’s intestacy distribution scheme. | ||
=== 1. Spouses === | === 1. Spouses === | ||
Under ''WESA'', it is possible to have more than one spouse by having a spouse by marriage in addition to a common law spouse. It is also possible to have multiple common law spouses. However, it is not possible to have more than one spouse by marriage. | Under ''WESA'', it is possible to have more than one spouse by having a spouse by marriage in addition to a common-law spouse. It is also possible to have multiple common-law spouses. However, it is not possible to have more than one spouse by marriage. | ||
The spouse of the deceased is always entitled to a preferential share of the estate, as well as the “household furnishings” defined as the personal property usually associated with the enjoyment by the spouses of the spousal home (''WESA'', s 21(1)). | The spouse of the deceased is always entitled to a preferential share of the estate, as well as the “household furnishings” defined as the personal property usually associated with the enjoyment by the spouses of the spousal home (''WESA'', s 21(1)). | ||
If there are two or more spouses, they must agree as to how to divide the preferential share, otherwise, it will be determined by the courts (''WESA'', s 22). | |||
=== 2. Spousal Home === | === 2. Spousal Home === | ||
In intestacy, the surviving spouse no longer has a right to the spousal home | In intestacy, the surviving spouse no longer has a right to the spousal home but has a right to acquire it under section 31 of ''WESA''. Section 33 allows the surviving spouse to make an application to retain the spousal home, considering factors such as whether requiring the surviving spouse to purchase the spousal home would be a significant hardship, and whether a greater prejudice would be imposed on the surviving spouse by being unable to continue to reside in the spousal home than would be imposed on the descendants entitled to share in the intestate estate. | ||
=== 3. Preferential Share === | === 3. Preferential Share === | ||
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{| class="wikitable" | {| class="wikitable" | ||
! Situation | ! Situation | ||
! WESA Section | ! ''WESA'' Section | ||
! Distribution | ! Distribution | ||
|- | |- | ||
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Under ''WESA'', two persons cease being spouses if: | Under ''WESA'', two persons cease being spouses if: | ||
:a) In the case of a marriage, they live separate and apart for at least two years, with '''one or both of them''' having formed the intention during that time to live separate and apart '''permanently''', or an event occurs that causes an interest in family property, as defined in Part 5 [Property Division] of the ''Family Law Act'', to arise pursuant to section 2(2)(a) of ''WESA'' | :a) In the case of a marriage, they live separate and apart for at least two years, with '''one or both of them''' having formed the intention during that time to live separate and apart '''permanently''', or an event occurs that causes an interest in family property, as defined in Part 5 [''Property Division''] of the ''Family Law Act'', to arise pursuant to section 2(2)(a) of ''WESA'', or | ||
:b) In the case of a marriage-like relationship, one or both persons terminate the relationship. | :b) In the case of a marriage-like relationship, one or both persons terminate the relationship. | ||
:'''NOTE:''' See ''Gosbjorn v. Hadley'', 2008 BCSC 219 and more recently and more recently ''Mother 1 v Solus Trust Company'', 2019 BCSC 200 at paras 149-151 for a discussion of when a marriage-like relationship ceases. | :'''NOTE:''' See ''Gosbjorn v. Hadley'', 2008 BCSC 219 and more recently and more recently ''Mother 1 v Solus Trust Company'', 2019 BCSC 200 at paras 149-151 for a discussion of when a marriage-like relationship ceases. | ||
== C. Miscellaneous Provisions == | == C. Miscellaneous Provisions == | ||
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{{REVIEWED LSLAP | date= | {{REVIEWED LSLAP | date= August 4, 2020}} | ||
{{LSLAP Manual Navbox|type=chapters15-22}} | {{LSLAP Manual Navbox|type=chapters15-22}} | ||