What requirements must be met for a will to be valid in BC?
What is or is not considered a will in BC?
In order for a will to be valid in BC it must satisfy three requirements:
- The will must be in writing;
- The will must be signed at the end, and;
- The will must be properly witnessed.
Prior to recent changes in BC law in 2014, if a will was missing one of these key elements, for example, if it was not witnessed, the courts would invalidate the will. While the courts could invalidate a broken will, they were not, prior to 2014, able to fix a broken will.
If a British Columbia estate is given in an invalid will, can the courts fix it?
In 2014, the legal framework surrounding wills and estates in British Columbia changed with the introduction of new legislation called the Wills, Estates and Succession Act. One of the biggest developments contained in the new law was something called a curative provision. This means that in cases where a will does not fully satisfy the formal requirements, the courts can now cure, or fix, the deficiencies in the broken will and pronounce a will valid.
What must be done for a BC court to fix an invalid will?
To invoke the powers to fix an invalid will, the court must be satisfied of two things:
First, the court must be satisfied that the document is authentic. Essentially this means the court asks, was this document prepared by the deceased? and;
Second, and most importantly, the court must ask, does this document truly represent the intentions of the deceased. That is, is it a fixed and final expression of the deceased’s wishes? Or in other words, did the person making the document mean for it to be their final will.
The courts, in determining whether a document represents a valid will, will look to a wide variety of evidence. This evidence includes: the presence of the deceased’s handwriting; whether the will had witness signatures; whether the document revoked previous wills; did the testator include plans for funeral arrangements; and did the testator include specific gifts.
Since the new laws came into force, people have creatively tried to prove a variety of documents as being valid wills. These range from handwritten notes on scrap paper, to journal entries, to letters. Although the courts are given broad power, the further a document departs from the formal requirements of a will, the harder it is for the court to find it embodies the deceased’s testamentary intention.
In the end, it is always best to seek the advice of a lawyer when dealing with a will. Failing to do so can mean your final wishes will be ignored, or those who should not benefit from an estate do so, while those who should benefit find themselves disinherited. If you or a loved one are contending with a will of questionable validity, the best advice is to seek legal counsel on your options. League and Williams is pleased to provide free consultations on estate litigation across British Columbia and may be contacted via either email at info@leaguelaw.com or by phone at 250-888-0002.