Article by: Patrick K. McMurchy
Section 37 the Wills, Estates and Succession Act, (“WESA”), sets out basic formal requirements for a valid B.C. will: it must be in writing, signed by the will-maker, in the presence of two or more witnesses, who must be at least 19 years old, and who are present when the will-maker signed the will, and it must be signed by two or more of those witnesses in the presence of the will-maker.
There are exceptions to the basic requirements for the Canadian military and for wills made according to the requirements in other jurisdictions outside B.C.
In addition to the formal requirements, to be valid there should be evidence the will was signed by the will-maker only after it had been read over by them or read to them and they appeared to understand it.
If these steps were followed, the will is presumed to be valid. But that presumption can be rebutted.
First, the presumption is rebutted if the will-maker lacked testamentary capacity. This requires, at minimum, that the will-maker was able to appreciate claims of actual and potential beneficiaries, such as spouses and children, the nature and extent of property being disposed of, and how these factors act in relation to each other.
Testamentary capacity is a legal, not medical, determination, although a medical opinion on the issue is relevant.
Evidence of undue influence on the will-maker, coercion, fraud or other “suspicious circumstances” in the preparation of the will also invalidate a will.
In 2014, the law significantly changed with respect to the importance of having a valid will with the passage of WESA. Until 2014, the court would only recognize formally valid wills, but s. 58 of WESA allows the court to “cure” invalid wills, and order that records and documents that are not formally valid in any respect can have the same affect as the provisions of a valid will and these documents can be used to replace a previous validly executed will.
In considering these cases, the greater the departure from the formal requirements for validity are, the harder it will be for applicants to convince a judge to cure an invalid record or document to make it effective.
The core issue is whether or not these informal records and documents set forth a seriously considered and final expression of the deceased’s “testamentary intentions”. The courts are well-aware that not every expression, whether made orally or in writing, concerning the disposition of their property embodies their testamentary intention.
It is still too early to tell exactly how s. 58 will affect the law. Recent cases include seven scraps of paper being considered as possibly changing the terms of a validly executed will, and the court decided they were not expressions of testamentary intention, and cell phone recordings of the deceased on their deathbed, two days before they passed, which as of the date of this article has not yet been decided.
The courts have in the past required, and will likely now place great weight on, requirements for formal validity. This is because the formally executed will provides reliable and permanent evidence of testamentary intention and serves to impress on the will-maker the finality and importance of making the dispositions in the will.
This short article is intended to give the reader a general understanding of some of the basic principles respecting the validity of wills and other testamentary documents in estate litigation. It is not intended as legal advice. In estate litigation, outcomes very much depend on the specific facts of each case.