What Happens to a Gift in a Will if the Beneficiary Dies First in BC?

When someone dies and the will leaves a gift to a person who has also died, families often wonder whether the gift simply disappears. In British Columbia, the Wills, Estates and Succession Act (WESA) has a set order for where that gift goes.

This article explains that order, how the survival rule works, and what it means for the people who end up receiving the gift. It does not cover estates with no will or gifts that a person chooses to refuse.

This article covers the law of British Columbia.

The order a failed gift follows

If a gift in a will cannot take effect for any reason, including because the beneficiary died before the will-maker, WESA s. 46 sets out who receives it. All of this is subject to a contrary intention in the will.

For the second step, the descendants are determined at the time of the will-maker's death.

The 5-day survival rule

A person who does not survive the deceased by 5 days, or by any longer period set in the instrument, is treated as having died first. This means a beneficiary who dies shortly after the will-maker can still be treated as having died before them.

If the will sets a longer survival period, that longer period applies. It is worth reading the will closely for any survival wording.

Other reasons a gift can fail

Section 46 is not limited to a beneficiary dying first. It applies whenever a gift cannot take effect for any reason.

One example is a former spouse. If the will-maker and spouse cease to be spouses after the will is made, any gift to the former spouse is revoked, and it is distributed as if the spouse had died before the will-maker. That is subject to any contrary intention in the will. A later reconciliation does not reverse the revocation.

A will is not revoked, in whole or in part, by a presumed intention to revoke because of a change in circumstances. So a change in family life does not by itself cancel other gifts in the will.

What this means for the people who receive the gift

• Notice: the notice of proposed application must go to each beneficiary under the will, and it must come with a copy of the will.
• Accounting: that notice must tell beneficiaries that the applicant has to provide an accounting of how the estate was administered and distributed.
• Minors: if a minor ends up a beneficiary and there is no trustee or trust for their interest, the personal representative must pay or transfer the interest to the Public Guardian and Trustee in trust for the minor.
• Court-appointed trustee: that duty does not apply if, before distribution, the court appoints a trustee to hold the minor's interest until age 19, on an application with notice to the Public Guardian and Trustee.

If the gift is not money, the Public Guardian and Trustee may convert it to money, transfer it to the minor, or decline it and recommend that the court appoint a trustee until the minor turns 19.

What to do next

• Read the will for an alternative beneficiary, a longer survival period or any wording about what happens if a gift fails.
• Find out the order and dates of the deaths, and whether any spouses separated after the will was made.
• Check whether the beneficiary whose gift failed was the will-maker's sibling or descendant, because if there is no alternative beneficiary, the gift then goes to that beneficiary's descendants, determined at the will-maker's death.
• Make sure everyone who is now a beneficiary receives the notice and a copy of the will.
• Ask a lawyer to confirm how s. 46 applies if the will's wording is unclear.

Frequently asked questions