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Estate Planning

Last Will & Testament; What Counts As A Will?

May 25, 2016 by Nancy Ling


Nancy Ling

The new Wills, Estates and Succession Act, SBC 2009, c. 13 (WESA) came into force on March 31, 2015. One of the changes to BC wills law that came along with WESA was the ability for the court to cure a “record” that doesn’t meet all the formalities of a proper will.

When you make a will in BC, it must be in writing and it must be signed in front of two disinterested witnesses. All three, the will maker and the two witnesses, must be present at the same time while the will is signed and witnessed.

Wills and estates law has evolved over a very long time, and there are several other technical and legal formalities that cause great difficulty when they are not observed. Therefore, there are many ways that a person’s last wishes can be unintentionally (or intentionally) frustrated. Now, we have a tool; s.58 of WESA, which allows the court to carry out the true testamentary intention of the deceased, whether or not the will was done properly.

That raises the question; what can be considered a will in BC?

The court can order that a document, writing, or “record”, which includes electronic data, be effective as though it were the last will and testament of a deceased person. So far, we have seen letters, notes, journal entries, suicide notes, handwritten changes on an existing will, and even handwriting on the back of a Safeway receipt brought before the court to be declared a valid will.

When deciding whether the document or record is sufficient, the court will look at these documents or records and will look for:

  • Authenticity. Is there proof that the will-maker personally made the record or instrument, and knew and approved the contents?
  • Fixed and final testamentary intention. Was the document signed, dated or witnessed? Was it given to the will-maker’s executor? Did they tell anyone about it?

The courts will also consider the available evidence of the deceased’s intention. What other actions did they take that either support or refute the finding that this was truly their fixed and final intention? Were they facing imminent death or suicide? How different is the document from an existing will? Do they mention changing or revoking their existing will?

In light of the new wills law after WESA, it is very important for executors and family members to preserve documents and records left by the deceased, even if there was a properly done will. Occasionally, these documents and records will amend or revoke parts of an existing and properly done will.

While it is now possible to leave your last wishes on the back of a receipt, and potentially have those wishes upheld, it is always preferable to reduce any uncertainty. Rather than leaving family members with the job of piecing together the clues of your final intentions, it is prudent to have a formal will prepared and properly executed with the help of a wills lawyer.