Summary#
Bill 13, An Act to Amend the Wills Act, would amend New Brunswick’s Wills Act and make related changes to the Probate Court Act. Its stated goal is not set out in the supplied text. The bill is at first reading, is not law, and would start on a date set by proclamation; the current Acts were not supplied, so existing rules could not be checked against the bill.
- It would set a general rule that the amended Act applies to a testator who dies on or after it starts, even if the will was made earlier. Some changes have narrower start-date rules.
- It would allow a person aged 16 or older with the mental capacity to do so to make, alter or revoke a will. This rule would apply only to wills made after the relevant section starts.
- It would set new rules for gifts and appointments in a will after divorce or the breakdown of a marriage or common-law relationship, and for gifts that cannot take effect.
- It would let courts admit evidence about a testator’s words, circumstances and intent when interpreting a will, without first finding ambiguity.
- It would change rules about witnesses, debts tied to property, lifetime gifts and property a testator does not own.
What it means for you#
- People making wills: The bill would set the minimum age at 16, if the person has mental capacity. It also says that a will is not revoked just because circumstances change, subject to the bill’s specific rules for relationship breakdown. The bill repeals existing sections on the effect of later marriage, but without the current Act that change’s exact effect cannot be verified.
- People named in a will after a relationship ends: In specified circumstances, gifts and appointments in favour of a former spouse or common-law partner would be revoked, and the will would be read as if that person had died before the testator. For spouses, the rules cover divorce or a marriage declared null, and certain separations. For common-law partners, they cover specified forms of relationship breakdown. A contrary intention in the will or, where specified, an agreement can affect the result.
- Beneficiaries and witnesses: A person who is a beneficiary, an executor, or a creditor could still be a competent witness if they meet the bill’s requirements. But a gift to a witness—or the witness’s spouse or common-law partner—would generally be void unless an exception applies or a court orders otherwise. A court could uphold it if satisfied the testator intended the gift and the witness did not exert undue influence.
- Beneficiaries of failed gifts: If a gift cannot take effect, the bill sets a default order for where the property goes: an alternate beneficiary; in some cases, the intended beneficiary’s issue (descendants); surviving residuary beneficiaries; or, if none apply, distribution as if the testator died intestate (without a will). A contrary intention found by the court can change this.
- People inheriting property with certain registered debts: For wills made after the relevant section starts, the beneficiary’s property would generally bear the part of a registered purchase-money security interest (a registered security for debt used to acquire, improve or preserve the property) tied to that property. The secured party could still seek repayment from other estate property.
- Probate Court users: The court could use the new evidence rules when interpreting wills. The bill does not set out a new application, review or appeal process.
Money#
No cost information is in the available material.
- The bill specifies no appropriation, fee, fine or cost estimate. It does not say whether courts would need additional staff or resources.
What is unclear#
- The date the bill would start is not set; it would be fixed by proclamation.
- The supplied material does not include the current Acts, so the exact changes from current law—including the effect of repealing the sections on later marriage—could not be verified.
- The bill does not set out detailed court procedures, timelines for interpreting wills, or reporting requirements. A court application to uphold a witness’s gift generally must be made within six months of the testator’s death, though the court may extend that time.
- The transition rules differ by change. The general rule reaches wills made before commencement when the testator dies after it, but the bill limits when some new rules apply.
Case for#
- A possible argument for the bill is that it gives courts express permission to consider a testator’s circumstances and intent, even when the will’s wording is not first found ambiguous.
- The relationship-breakdown rules could reduce the chance that a former partner receives a gift or role in a will when the relationship ended before the testator died.
- The default rules for failed gifts give a stated order for distributing property instead of leaving that question to an unstated rule.
- The witness provisions allow some people with a connection to a will to witness it, while giving courts a way to reject a gift if undue influence occurred.
Case against#
- The bill gives courts broad discretion over what evidence to admit about a testator’s intent, but does not set out a detailed process or limits for using that evidence.
- The relationship rules depend on facts such as whether a relationship was permanently terminated or affairs were being finalized. The bill does not define every key term or explain how disputes over those facts would be resolved.
- Some new rules would apply to wills made before commencement, while others would not. This could make it harder to know which rules govern a particular estate.
- The bill does not estimate the cost of court applications or of applying the new rules.