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{{REVIEWEDPLS | reviewer = [https://www.mooreedgarlyster.com/lawyers/sara-hanson Sara Hanson], Moore Edgar Lyster LLP|date= November 2022}} {{Dial-A-Law TOC|expanded = wills}}
{{REVIEWEDPLS | reviewer = [https://www.mclellanherbert.com/Our-Team.shtml Hugh McLellan], McLellan Herbert|date= November 2020}} {{Dial-A-Law TOC|expanded = wills}}
If you’re treated badly or unfairly based on a part of your identity that is protected under human rights law (such as age or sex or religion), this is called '''discrimination'''. Learn your rights and options if someone discriminates against you in the workplace.
Preparing a will is a key step in planning for what happens when you pass away. Learn the essentials of preparing a will and tips for creating an estate plan.


==What you should know==
==What you should know==
===Which human rights laws apply in your workplace===
===A will is a legal document===
There are provincial and federal human rights laws that protect workers from discrimination in the workplace.
A will is a document that says what you want done with your property when you die.  It’s a map for those you leave behind.  


The BC ''Human Rights Code'' applies to most workplaces in the province. This information focuses on this law.
===Why prepare a will===
Every adult who owns assets or has a spouse or young children should have a will. But surprisingly, many people don’t.  


Federal human rights law applies to some workplaces, including those in federally-regulated industries (such as banking and telecommunications).
Having a clear statement of your wishes gives you some control over who gets what after you’re gone. And it helps your loved ones feel confident they’re carrying out those wishes. Knowing your intentions will save them time, stress and money at a difficult time.  


If your situation involves federal law, or you think it might, you can contact the Canadian Human Rights Commission. [https://www.chrc-ccdp.gc.ca/ See their website]. They can point you to information on federal human rights law.
Preparing a will lets you choose an '''executor'''. This is a person who carries out the instructions in the will. If you’re a parent, you can also appoint a guardian to care for any children under age 19 after your death.


===You are protected against discrimination in the workplace===
===What your will doesn’t deal with===
The law protects you from discrimination at work. An employer must not discriminate against you based on certain parts of your identity.
A will generally doesn’t cover property you don’t own exclusively. For example, a joint bank account or a house owned in joint tenancy has a '''right of survivorship'''. That means they automatically become the property of the joint survivor when you die (we explain some exceptions to this rule shortly).  


These are:
{| class="wikitable"
* your race, colour, ancestry, or where you’re from
|align="left"|'''Tip'''
* your Indigenous identity
You can also own property with someone else as a '''tenant-in-common'''. When you die, your share doesn’t automatically go to the other owner.
* your sex, sexual orientation, or gender identity or expression
* your age
* any physical or mental disability
* your marital or family status
* your religion or political belief
* any criminal convictions that are unrelated to the job


The law calls these '''protected characteristics'''. You can’t be treated badly or unfairly in the workplace based on a protected characteristic. If you are, you’ve experienced discrimination.
Say you own a family cottage with your siblings. If owned as tenants-in-common, you can pass your own share to whomever you want, through your will. Your share won’t automatically go to your other siblings when you die.
|}


==This protection applies in all aspects of employment==
Also, a will doesn’t apply to property like life insurance, retirement savings plans and income funds, and tax-free savings accounts if you’ve already named a beneficiary for them. When you die, the bank or trust company directly transfers the asset, or pays it out, to the person you named.
The protection against discrimination applies in all aspects of your employment. It applies in hiring, firing, wages, benefits, hours, and other terms and conditions of work.


This means an employer cannot factor a protected characteristic into:
===If you don’t prepare a will===
If you pass away without having made a will, the law says how your property will get distributed, and who has the right to “administer” your affairs. [https://dialalaw.peopleslawschool.ca/when-someone-dies-without-a-will/ Our information on when someone dies without a will] explains how these rules work. Dying without a will can make things more difficult (and more costly) for your loved ones.


* not hiring you
===A will is only one part of estate planning===
* not promoting you
With '''estate planning''', you may be able to reduce fees and taxes that your estate would otherwise pay. Consider, for example, the following strategies.
* firing you
* discriminating against you in some other way in your job


The protected characteristic does not need to be the only or main reason for a decision or action by an employer. It’s discrimination if the characteristic is a factor in your treatment. For example, if you weren’t hired in part because of your religion or sex, that’s discrimination.
====Joint assets====
'''Joint assets''' can include a joint bank account that two or more people own, or a home owned by two or more people as joint tenants. The owners of joint assets have a “right of survivorship.” So if you and another person own a home as joint tenants, the surviving joint owner will get the home when you die. The home is said to '''pass outside your will'''.  


Employers must provide a discrimination-free workplace. They may be liable for discrimination, including harassment, by their workers in the workplace.
One advantage of owning property this way is that no probate fees have to be paid for the home. Probate fees are paid to the court based on the value of the estate assets.  


===What workplace discrimination can look like===
A joint asset doesn’t always pass to the surviving owner. In several recent cases, courts have said that a jointly-owned asset had to be returned to the estate. If your joint asset is with another adult other than your spouse (such as an adult child), then the court may make them return the asset to your estate. It would then be distributed according to your will. If you don’t want this to happen, talk to an estates planning lawyer. They may recommend clearly documenting your intention to give the asset to the other joint holder when you die.  
Discrimination at work can take many forms. It can be '''direct'''. This is where you’re treated differently in the workplace because of a protected characteristic, and you suffer harm.


For example:
====Assets with a designated beneficiary====
Life insurance policies, registered retirement savings plans, registered retirement income funds, and tax free savings accounts all let you name a '''beneficiary''' to get the proceeds when you die. If you name a beneficiary and they survive you by at least five days, the proceeds flow outside your will to them. For example, a beneficiary will get the money in a registered retirement savings plan directly from the company holding the plan, and not from the estate.


* an employer doesn’t hire a person for a job because they’re transgender
====Trusts====
* co-workers harass a worker over their race, religion, sex or other protected characteristic (harassment is conduct a reasonable person would consider objectionable or unwelcome)
Depending on the size of your estate, you may want to set up a trust (outside of the will) to protect your estate against a wills variation claim. We explain wills variation claims shortly.
* an employer fires a worker because she’s pregnant


Discrimination can also be '''indirect'''. This is trickier to spot. Here, you’re treated the same as your co-workers, but you’re still disadvantaged by a protected characteristic. This is usually because of a workplace rule or practice.
====Charitable gifts====
You can reduce the income tax owing from the sale of your assets on your death by making charitable gifts in your will.


For example, say you follow a religion that requires you to wear a head covering. Your employer has a rule prohibiting workers from wearing anything on their heads. The rule applies to everyone at work, so in that way it seems fair. But it hits you harder than your colleagues because head-covering has another level of meaning for you.
==Prepare a will==
===Step 1. Gather information and prepare well===
It helps if you have the following information ready before you prepare your own will or meet with a lawyer or notary public:
* A list of everyone in your immediate family, with their full names and contact information, their relationship to you, and the ages of all your children, including stepchildren.
* The names and addresses of any other people or organizations you want to give gifts to.  
* A list of all your '''assets''' and their values, including your home, car, investments, and any personal items of significant monetary value.  
* A description of how you own these assets (for example, alone or with someone else).
* A document that shows whose name is on the title of any real estate you own.
* Details of any insurance policies you own, and, specifically, the '''beneficiaries''' under the policy.
* Details of any pensions, retirement savings plans or income funds, and tax-free savings accounts, and who the beneficiaries are.
* Information on the structure of any business you operate (for example, a company or partnership).
* Any separation agreements or court orders requiring you to make support payments or dealing with guardianship of any minor children.
* The name, address, and occupation for your '''executor''' and '''guardian'''.


===The employer’s duty to accommodate===
===Step 2. Choose an executor===
If you’re disadvantaged at work because of a protected characteristic, your employer has a '''duty to accommodate''' you.
The '''executor''' is the person you name in your will to carry out your instructions. They locate all of your property, pay any debts and funeral costs, prepare the final tax return, and distribute the rest of the estate as the will specifies.
Most people ask a family member or close friend to be their executor. You can also ask a lawyer, a notary public, a private trust company, or the Public Guardian and Trustee.  


For example, a person with a disability may not be able to perform a certain part of their job because of their disability. The employer must take reasonable steps to accommodate the disability and support the worker to do the job. For more on this, [https://www.peopleslawschool.ca/everyday-legal-problems/work/rights-work/your-employer%E2%80%99s-duty-accommodate-you see our information on an employer’s duty to accommodate].
====Qualities to look for when choosing an executor====
Choose someone you trust and who will likely be alive when you die. They may be a trusted family member or friend. Often, people appoint their spouse, but if you’re both old, an adult child or children may be better. It helps if your executor is well organized, good at keeping records, and a good communicator. Most importantly, they must be willing to do the job as executor — so check in with them beforehand!


===An exception for a bona fide occupational requirement===
If you have a complex estate or investments or need someone to take over the operation of a company, consider asking a lawyer, accountant, or trust company to act as your executor. Be aware that your estate will be charged for their services.
An employer has one main legal defence against a worker’s claim of workplace discrimination. An employer can try to justify a rule or practice that appears to be discriminatory by showing it is based on a '''bona fide occupational requirement'''.


To use this defence, an employer must show that:
{| class="wikitable"
* the rule or practice has a purpose legitimately connected to the performance of the job, and
|align="left"|'''Tip'''
* they acted in good faith, believing the rule or practice was necessary to achieve the purpose, and
You can appoint more than one executor and they can act together as '''co-executors'''. It’s important to appoint an '''alternate executor''', too. This is a back-up person who can take over if the first executor can’t or won’t act.  
* the needs of the person discriminated against cannot be accommodated without the employer experiencing undue hardship.
|}


==Options for action==
===Step 3. Prepare your will===
===Make a human rights complaint===
With good do-it-yourself materials, you can write a simple will. The will can take care of basic concerns, such as leaving a home, investments, and personal items to loved ones. You should be aware there are rules and formalities that must be followed, no matter how simple the will. Otherwise, the will may not be valid.
You can make a '''human rights complaint'''. The BC Human Rights Tribunal deals with complaints under the BC ''Human Rights Code''. It operates like a court but is less formal. It has staff who help people resolve complaints without going to a hearing. If that’s not possible, they hold a hearing to decide if there was discrimination.


If the tribunal decides your complaint is justified, it can order the employer or other person to stop discriminating. It can order that you get your job back, or be given the right to compete for a job. The tribunal can also award you money for lost income and for injury to your dignity, feelings, and self-respect.
A will is a legally binding document. Having your will prepared by an experienced estates lawyer or notary public is the safest way to avoid mistakes. Knowing your will is properly drafted can give you peace of mind. The words used must be chosen carefully so that the will is clear.  


If you decide to bring a human rights complaint, you must file it with the tribunal within '''one year''' of when the discrimination happened. We explain the steps involved. [https://www.peopleslawschool.ca/human-rights-complaint/ See our in-depth coverage of making a human rights complaint].
Notaries can prepare simple wills. Getting advice from a lawyer is particularly important when there are features such as a blended family, a charitable gift, property outside of British Columbia, a family business, a desire to hold property in trust for someone (such as minor children), or a wish to leave certain people out of your will.  


===Make an employment standards complaint===
====Step 4. Make plans for minor children====
If your employer didn’t follow the ''Employment Standards Act'', you can '''make an employment standards complaint'''. You must file your complaint within six months of your last day of employment.
If you’re a parent or guardian of a minor child (under 19 years old), the [https://www.canlii.org/en/bc/laws/stat/sbc-2011-c-25/latest/sbc-2011-c-25.html ''Family Law Act''] lets you appoint someone to be the child’s '''guardian''' in your will.


However, if you go this route you’ll only be able to claim whatever severance pay your employer owes you. You won’t be able to get compensation for discrimination. And if you choose this option, you could be barred from starting a human rights complaint.
It’s important to name a guardian if you’re a single parent. For separated parents, it’s best to agree on the choice of a guardian if one or both of you die. If that’s not possible, it’s important to consider your parenting responsibilities (through a court order or separation agreement) and ensure that you include them as part of appointing a guardian in your will.


We have information on the steps involved. See [https://www.peopleslawschool.ca/everyday-legal-problems/work/dealing-problem-work/making-employment-standards-complaint making an employment standards complaint].
Although your choice of guardian is important, the court doesn’t have to follow your wishes and may appoint a different guardian if it would be in the child’s best interests. The court will consider the wishes of any child 12 or older. So you should check with an older child about their wishes before deciding on who to name as guardian in your will.


===Sue for wrongful dismissal===
====Protecting a minor child’s inheritance====
If you lose your job because of discrimination, you may decide to sue for '''wrongful dismissal'''. You must bring your claim within two years of being dismissed from your job.
The personal guardian generally doesn’t have any rights to look after a minor child’s property  — they can only receive and hold a minor child’s property or money if it’s worth less than $10,000. If a minor is entitled to a share in an estate, and the will doesn’t say that their share is going to be held in '''trust''' for them, [https://www.canlii.org/en/bc/laws/stat/sbc-2009-c-13/129389/sbc-2009-c-13.html#sec153 the law] says their share has to be paid to the '''Public Guardian and Trustee'''. The money is then held in trust for the minor until they’re 19 years old. It’s best to speak to a lawyer about drafting a trust so you can choose your own trustee to manage the minor’s inheritance. The executor can be the same person as the trustee.


But the court can only award you damages for your lost wages; it can’t award extra damages to compensate you for the discrimination. You’re likely to collect more if you file a human rights complaint, because you can get damages for lost wages as well as discrimination.
===Step 5. File a wills notice===
You can file a '''wills notice''' with the [https://www2.gov.bc.ca/gov/content/life-events/death/wills-registry wills registry] of the [https://www2.gov.bc.ca/gov/content/family-social-supports/seniors/health-safety/health-care-programs-and-services/vital-statistics Vital Statistics Agency]. A wills notice says who made the will and where it is kept. This is a voluntary registration and has a small filing fee. Vital Statistics doesn’t take a copy of your will. You or your lawyer or notary fill out an information form listing where your will is kept. After a person dies, a search of the wills registry is required for the probate process to make sure the court has the last will.  


===If you belong to a union===
===Step 6. Regularly review your will===
If you belong to a union, one option is to ask the union to file a '''grievance''' about the discrimination. If your union refuses to file a grievance on your behalf, you may be able to file a complaint against your union for failing to represent you fairly. This complaint is called a '''section 12 complaint''' and is filed with the BC Labour Relations Board.
It’s good to review your will every three to five years. Does it still reflect your current wishes? You should also consider changing your will whenever your financial or personal circumstances change (such as if you get divorced), or if beneficiaries die or reach the age of majority.  


===If you bring a human rights complaint===
====Getting married or divorced====
If you make a human rights complaint and also pursue another option, the tribunal can wait until the other process is finished before dealing with your complaint. If the tribunal finds that the other process adequately addressed the issue, the tribunal may decide not to hear your complaint.
Getting married does not cancel a will. The exception is if you married before March 31, 2014, and made a will before you got married. If the exception applies, your will was cancelled when you got married (unless the will said it was made in contemplation of your marriage).


It’s a good idea to seek legal advice on your options. [https://www.peopleslawschool.ca/everyday-legal-problems/resolving-disputes/legal-help-lawyers/options-legal-help There is free and low-cost legal help available].
What about divorce or separation? If you had a spouse at the time you made your will, and later separated from them, your will is treated as if your spouse died before you. So your will is still valid, but any gift you left to your former spouse won’t be recognized. As well, if you named your former spouse as your executor, the appointment would no longer be effective. The rest of the instructions in your will can be followed.


==Who can help==
==After you pass away==
===Helpful agencies===
===Your will can be changed after you die===
Consider reaching out to these agencies for help if you experience discrimination at work.
If your will doesn’t adequately provide for your spouse and children (including illegitimate and adopted children), they can ask a court to change the will. This is called a '''wills variation claim'''. [https://dialalaw.peopleslawschool.ca/challenging-a-will/ Our information on challenging a will explains this in more detail].
 
===Your estate may have to pay probate fees===
With most estates, an executor must apply to court to '''probate''' the will. The word “probate” means “proof”. The process proves the will is legally valid. [https://dialalaw.peopleslawschool.ca/your-duties-as-executor/ Our information on the duties of the executor explains the process]. '''Probate fees''' must be paid to the court registry. The fees depend on how much the estate is worth:
* less than $25,000 — no fee
* between $25,000 and $50,000 — $6 per $1,000 (this amounts to a probate fee of $150 on an estate valued at $50,000)
* over $50,000 — $150 plus $14 per $1,000 of estate value over $50,000
 
These fees can change. Details are in the ''[https://www.canlii.org/en/bc/laws/stat/sbc-1999-c-4/latest/sbc-1999-c-4.html Probate Fee Act]'' and the [https://www.canlii.org/en/bc/laws/regu/bc-reg-168-2009/latest/bc-reg-168-2009.html?searchUrlHash=AAAAAQAZc3VwcmVtZSBjb3VydCBjaXZpbCBydWxlcwAAAAAB&resultIndex=1 Supreme Court Civil Rules].
 
Probate fees can often be avoided or reduced by estate planning outside of a will. A lawyer can help with that planning.


:'''BC Human Rights Tribunal'''
Probate fees are usually just a small part of the total cost of the process. There can be legal fees, fees to transfer assets from one name to another, and other costs.
:Receives and resolves discrimination complaints under BC law.
:Call 1-888-440-8844
:[https://www.peopleslawschool.ca/person/bc-human-rights-tribunal/ Visit website]


:'''BC Human Rights Clinic'''
===Your estate may have to pay taxes===
:Provides free assistance and representation to those who qualify for help with a discrimination complaint under BC law.
When a person dies, the law assumes they sold all their assets on the date immediately before their death. If an asset increased in value since it was purchased, a '''capital gains tax''' will have to be paid for the same year as the person’s death (even if the property is not actually sold). There are some exceptions, such as gifts to spouses and principal residences. But if you own assets that will be subject to capital gains tax on your death, you should speak to a lawyer or an accountant to see how to deal with this tax. For example, a recreational property in your name alone will normally be subject to capital gains tax.  
:Call 1-855-685-6222
:[https://bchrc.net/ Visit website]


:'''Canadian Human Rights Commission'''
==Common questions==
:Deals with discrimination complaints under federal human rights law.
===Where should I keep my will?===
:Call 1-888-214-1090
If your original will is in paper form, you can keep it with your lawyer or notary, or in a safety deposit box at your bank. That way the will is in a permanent, safe, and fireproof location.
:[https://www.chrc-ccdp.gc.ca/ Visit website]
If your original will is in electronic form, there will be multiple true originals. Assemble and store these in the same place, such as with your notary or lawyer or a secure electronic repository. 
Your executor will need your original will (not a copy) to give to the probate registry. You should let your executor know where you keep your will and other important documents, so they know where to get it.  


:'''Labour Relations Board'''
===How much does it cost to get professional help to make a will?===
:May be able to help if your union has refused to file a grievance for you.
It depends on how complex your situation is. Most lawyers and notaries charge a fee that reflects the time, skill, and responsibility involved. Discuss the fees with your lawyer or notary when you call to arrange a meeting. You should be able to get free estimates. Feel free to shop around and compare prices.
:Call 1-604-660-1304
:[https://www.lrb.bc.ca/ Visit website]


===Legal advice===
===What if I made a will in another province?===
There are options for free legal advice.
If you made a will in another province and now live in BC, your will may work in BC. You need to see a lawyer to find out.


:'''Lawyer Referral Service'''
==Who can help==
:Helps you connect with a lawyer for a complimentary 15-minute consult to see if you want to hire them.
===With preparing a will===
:Call 1-800-663-1919
:A notary public can help you prepare a will. The Society of Notaries Public of BC offers a list of notaries in the province.
:[https://www.accessprobono.ca/our-programs/lawyer-referral-service Visit website]
:Call 604-681-4516 in the Lower Mainland
:Call 1-800-663-0343 (toll-free)
:Visit website


:'''Access Pro Bono's Free Legal Advice'''
:Access Pro Bono offers an in-person clinic in Vancouver staffed by volunteer lawyers to help low-income seniors (ages 55+) and people with terminal illnesses prepare a will.  
:Volunteer lawyers provide 30 minutes of free legal advice to people with low or modest income.
:Call 604-424-9600
:Call 1-877-762-6664
:Visit website  
:[https://www.accessprobono.ca/get-legal-help Visit website]


:'''People’s Law School'''
===More information===
:See more options for free or low-cost legal help.
:The Nidus Personal Planning Resource Centre & Registry has detailed information on all aspects of personal planning, including fact sheets, forms, and videos.
:[https://www.peopleslawschool.ca/options-legal-help/?utm_source=beagle Visit website]
:Visit website


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