What Happens If a Beneficiary Dies Before the Will-Maker in BC?

You may have just read a will and found that someone named in it died before the person who made it. It is natural to wonder whether the gift simply disappears, or whether it passes to someone else.

In British Columbia, the Wills, Estates and Succession Act (WESA) sets out who takes a gift that fails. The answer depends on what the will says and on how the failed beneficiary was related to the will-maker.

This article covers the law of British Columbia.

Does the gift lapse?

A gift to a person who died first cannot be received by that person. WESA deals with this directly: if a gift cannot take effect for any reason, including because the beneficiary died before the will-maker, it is redirected under a set order of priority, subject to any contrary intention in the will.

So the gift does not automatically fall into the general estate. First you look at what the will itself says, and only then at the default rules.

It also helps to know that a will is not revoked, in whole or in part, by a presumed intention to revoke because of a change in circumstances. How a beneficiary's death affects the rest of a particular will depends on its wording, so it is worth confirming with a lawyer. The failed gift itself goes first to any alternative beneficiary, then in some cases to the failed beneficiary's descendants, and otherwise to the surviving residuary beneficiaries.

The order in which a failed gift passes

Each step applies only if the one before it does not. The will can always show a different intention, which then takes priority over the default order.

Gifts to children, siblings and other relatives

If the will left a gift to a child or a sibling of the will-maker who died first, and the will names no alternative, the gift goes to that person's descendants, such as grandchildren. This rule is limited to siblings and descendants of the will-maker.

For a friend, a more distant relative or a charity, that rule does not apply. If there is no alternative named, the gift goes to the surviving residuary beneficiaries in proportion to their interests.

Sometimes the descendants who take a failed gift are minors. If a minor is a beneficiary and there is no trustee or trust for their interest, the personal representative must pay or transfer the minor's interest to the Public Guardian and Trustee in trust for the minor. This does not apply if, before distribution, the court appoints a trustee to hold the minor's interest until age 19. The Public Guardian and Trustee releases a child's trust funds at age 19, unless a trust agreement sets a longer period.

What counts as dying first

A person who does not survive the deceased by 5 days, or by any longer period set in the will or other instrument, is treated as having died first. This matters when two people die close together, because a beneficiary who died a day or two later may still be treated as having died first.

A gift to a former spouse is a related situation

A gift can also fail because the will-maker and a spouse stopped being spouses after the will was made. In that case, any gift to the former spouse, their appointment as executor or trustee, and any power of appointment given to them are revoked, and the gift is distributed as if the spouse had died before the will-maker. This is subject to any contrary intention in the will. A later reconciliation does not reverse the revocation.

Married spouses cease to be spouses when an event occurs that creates an interest in family property under Part 5 of the Family Law Act, such as separation. People in a marriage-like relationship are spouses only if they lived together for at least 2 years, and they cease to be spouses when one or both end the relationship. Spouses are not treated as separated if, within one year, they resume living together primarily to reconcile and live together for one or more periods totalling at least 90 days.

What to do next

Before a grant of probate or administration is applied for, the applicant must give notice of the proposed application, and that notice must go to each beneficiary under the will. It must be delivered with a copy of the will. Whether a failed gift affects you will depend on the exact wording, so it helps to gather the facts first.

• Read the whole will for alternative beneficiaries or wording about what happens if a beneficiary dies first.
• Find out how the failed beneficiary was related to the will-maker, and whether they left descendants.
• Identify who the residuary beneficiaries are.
• Note the date of each death so the 5-day rule can be checked.
• Check whether the failed beneficiary was a spouse who separated from the will-maker after the will was made.
• Speak with a lawyer if the wording is unclear or the shares affect several people.

Frequently asked questions