There are several formal requirements which must be satisfied in order for a will to be valid. Failure to meet the requirements may trigger a dispute following the will-maker’s death. For example, a family member who has been left out of the will may contend that the will does not meet the requirements for validity, so it is invalid. In contrast, a beneficiary might argue that the requirements were satisfied or that the will should be effective anyway.
This article reviews the basic formal requirements for a valid will in British Columbia and some exceptions to the customary formalities.
Section 37 of the British Columbia Wills, Estates and Succession Act (the “WESA”) lists the basic requirements necessary for a valid will. A will is valid if the will-maker is at least 16 years old and the document is:
- in writing;
- signed at its end by the will-maker (or by another person in the will-maker’s presence and by their direction) in the presence of two or more witnesses present at the same time; and
- signed by at least two of the witnesses in the will-maker’s presence.
The WESA requires witnesses to be at least 19 years old. A will is not invalid if a witness, or their spouse, is also a beneficiary under the will. A gift to the witness will be void unless a court declares otherwise. The court can make such a declaration if it is satisfied that the will-maker intended to make the gift even though they, or their spouse, were a witness.
The WESA was amended in response to the COVID-19 pandemic to allow for wills to be made in electronic form. The requirement for a will to be in writing is satisfied if the will is in electronic form. Electronic form is defined as a form that is recorded and stored electronically, can be read by a person and is capable of being reproduced in a visible form.
The electronic will can also be signed by electronic signature. Further, the signing of the will by the will-maker and witnesses can be done in each other’s electronic presence.
There are some exceptions to the general formality requirements, such as:
- A member of the Canadian Forces or the naval, land or air force of a Commonwealth member or ally of Canada, while on active service, may make a will in writing, signed by the will-maker. There is no need for a witness unless someone else signs the will on behalf of the will-maker; and
- The formality provisions of the WESA do not apply to the wills of registered Indians, as defined under the Indian Act.
In addition, a will that does not satisfy the formal requirements may be cured in some circumstances.
The WESA introduced the possibility of a will which does not comply with the formal requirements being “cured”. A person can apply to the court seeking an order that a record, document, writing or marking on a will or document be fully effective as a will, even if it doesn’t meet the formality requirements of the WESA.
The court may make such an order if it determines that the record or document that does not meet the formal requirements represents the testamentary intentions of the deceased person. To successfully cure a will, the applicant is required to prove, on the balance of probabilities, that the document is authentic and represents the deceased’s true intentions. Extrinsic evidence may be used for this purpose.
A holographic will is a will which is written in the will-maker’s handwriting and is signed by the will-maker, but not in the presence of witnesses. Some jurisdictions, such as Ontario, recognize holographic wills as valid. However, in British Columbia, the WESA does not generally provide for the validity of holographic wills as an exception to the normal formality requirements.
However, a holographic will would be recognized if prepared by a Canadian Forces member on active service in accordance with the exception outlined above. In addition, a holographic will can be cured through the process set out above, if the court decides that it represents the deceased’s testamentary intentions.
If a will is made outside of British Columbia, it may have been prepared in accordance with the formality requirements which apply in the drafting jurisdiction. These requirements may be different from the British Columbia requirements. So, can the will nonetheless be considered valid here?
Section 80 of the WESA states that a will can satisfy the formal requirements if it is made in accordance with the law of any of the jurisdictions set out in a lengthy list. Some examples include:
- the law of the place where the will was made;
- the law of the will-maker’s ordinary residence (either when the will was made or the will-maker died);
- the law of the will-maker’s citizenship (either when the will was made or the will-maker died); or
- the law of the place where the property was situated (either when the will was made or the will-maker died).
Are you seeking to uphold a will that may not meet all of the required formalities or looking to challenge a will made in suspicious circumstances or without regard for the formal requirements? The experienced team at Meridian Law Group can help. The firm’s estate litigators will examine your particular circumstances and advise you on your prospects. Given the emotional nature of inheritance disputes, we aim to settle disputes quickly to allow you to move on with other priorities. We will vigorously advocate for our clients’ rights through litigation where necessary.
Our office is located in downtown Vancouver and represents clients in the lower Mainland and throughout British Columbia. To arrange a confidential consultation with Meridian Law Group to discuss your estate dispute, please call (604) 687-2277 or fill out our online form.