As we have mentioned on several occasions, the Wills, Estates and Succession Act (“WESA”) is now in force. That does not mean, however, that every legislative provision that WESA replaces is entirely obsolete. Sections 185-190 of WESA contain the transition provisions and provide, in part, as follows:
- the provisions regarding the validity of wills and the legal effect of wills apply if the will-maker died on or after the date WESA came into force, even if the will was executed prior to that date. However, the WESA provisions will not invalidate a previously valid will or revive a previously revoked will;
- the variation of wills provisions apply if the will-maker died on or after the date WESA came into force. However, these provisions are generally the same as under the Wills Variation Act;
- the provisions regarding survivorship, intestate distributions, and estate administration, among others, apply if the will-maker died on or after the date WESA came into force;
- the provisions regarding beneficiary designations apply if the participant dies on or after the date WESA came into force;
- administration and probate granted under the old legislation are treated as though they have been granted under WESA; and
- the court may give any transitional directions that are necessary in the circumstances.
In most cases, if the deceased died prior to WESA coming into force, the old legislation will apply.
The amendments to the Supreme Court Civil Rules (the new probate rules), which came into force at the same time as WESA, apply to proceedings taking place after the date they came into force. In other words, regardless of whether WESA applies or not, the new probate rules provide the appropriate procedure.