New rules for wills and breakups

Summary#

• This bill updates New Brunswick’s Wills Act. It modernizes the rules about who can make a will, what happens after a breakup, and how courts read a will.
• It adds common-law partners, lowers the age to make a will to 16, and lets courts look at more kinds of evidence to figure out what the person who wrote the will wanted.

Key changes

• Lets people age 16 or older make, change, or cancel a will if they understand what they are doing.
• Marriage no longer cancels an existing will. Divorce, annulment, separation, or the breakdown of a common‑law relationship usually cancels gifts to the former partner and their role as executor, unless the will clearly says otherwise.
• Witness rules are updated: a beneficiary can witness a will, but their gift is normally void unless a court allows it or certain exceptions apply.
• If a beneficiary dies first, the bill sets a clear order for where the gift goes next (for example, to an alternate, then to that person’s children).
• Children born to unmarried parents have the same status as those born to married parents for will purposes.
• If you leave someone a house or other property with a loan used to buy or improve it, the property usually passes with that debt attached, unless the will says otherwise.
• Removes old common-law presumptions, like assuming a lifetime gift to a child reduces their share under the will.

What it means for you#

• General public

  • You can make a will at 16 if you have the mental capacity to understand it.
  • Getting married will not cancel your current will. Review your will after life changes rather than relying on automatic rules.
  • If you divorce, annul your marriage, separate, or end a common‑law relationship, gifts to that former partner and any powers you gave them (like acting as executor or trustee) are usually cancelled, unless your will or a legal agreement shows you wanted the opposite.
  • Courts can consider plain-language explanations, your circumstances, and other evidence to work out your true wishes if your will’s words are unclear.

• Couples (married or common‑law)

  • Common‑law partners (living together in a conjugal relationship for at least two years) are recognized. After a breakup, gifts to the former common‑law partner and roles you gave them are usually cancelled unless your will says otherwise.
  • You are considered “separated” for these rules if, at death, one of several conditions applies (for example, living apart due to breakdown for two years, having a property/separation agreement or court order, or having divided property to finalize affairs).
  • These cancellation rules apply only to divorces, separations, or common‑law breakups that happen after the law takes effect.

• Parents and children

  • If a child named in your will dies before you, the gift can go to that child’s children (your grandchildren), unless your will clearly says otherwise.
  • Lifetime gifts to a child no longer reduce that child’s share under your will unless your will says they should.

• Beneficiaries, executors, and witnesses

  • A witness must be an adult (age of majority) and mentally capable. Someone signing a will on behalf of the will‑maker cannot be a witness.
  • A beneficiary who acts as a witness can still testify about the will, but their gift is normally void unless:
    • a court restores the gift because you clearly intended it and there was no undue influence,
    • the gift is only to repay a real debt, or
    • there are at least two other witnesses who are not beneficiaries (or no witness is required for that type of will).
  • An executor can witness the will. Their right to normal executor pay or professional fees is not voided by witnessing.

• Homeowners and borrowers

  • If you leave someone property with a loan used to buy, improve, or preserve it, that property usually comes with the debt. The beneficiary is primarily responsible for that debt, unless your will clearly shifts it to the rest of the estate.
  • If the same loan covers more than one property in the will, each property bears its fair share.

• Creditors and people you owe money

  • Leaving money to a creditor does not automatically cancel the debt. The debt still exists unless your will clearly says otherwise.
  • If a creditor witnesses your will and your will tells your estate to repay that creditor, that repayment remains valid.

• Property you do not own

  • If your will tries to give away property you do not own, that part is void. But the real owner can still receive any separate gift you left them.

• Timing

  • The law takes effect on a date set by the government. Some rules only apply to wills made, or relationships ended, after that date.

Expenses#

No publicly available information.

Proponents' View#

• Brings wills law up to date, including recognizing common‑law partners and modern family situations.
• Protects people from unintentionally leaving property or control to an ex‑spouse or former common‑law partner after a breakup.
• Lets 16- and 17‑year‑olds, including young parents or workers in risky jobs, make a valid will.
• Allows judges to consider more evidence to honor the will‑maker’s true wishes and reduce unfair technical outcomes.
• Clarifies who pays debts tied to specific property, and removes outdated legal presumptions that often caused confusion and disputes.
• Keeps probate processes fair by letting common‑law partners apply like spouses in certain court matters.

Opponents' View#

• Could lead to more court cases and costs, since courts may be asked more often to interpret wills or restore gifts to witnesses.
• Automatic cancellation of gifts to a separated or former partner might defeat a will‑maker’s actual wishes if they intended to still provide for that person.
• The separation rules (like the two‑year period or the need for agreements) may be hard for families to understand and apply after a death.
• Lowering the will‑making age to 16 could raise concerns about maturity and undue influence.
• Beneficiaries may be surprised to inherit property along with its debt if the will does not clearly say the estate should pay it.
• Removing old presumptions about lifetime gifts could upset expectations in families that relied on those assumptions.