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11

British Columbia Last Will (Part 6): Revocations, Amendments, and More!

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BC Last Will and Testament

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only. If you need legal advice, you should seek professional assistance.

Remember: if you’re looking for a Legal Will in the Province of British Columbia, then look no further:

Last Will and Testament (British Columbia)

This Will allows you to:

  • name someone (Estate Trustee) to administer your estate and transfer your property at death;
  • make cash gifts, charitable gifts, and gifts of real or personal property to specific beneficiaries; and
  • transfer the residue of your estate (i.e. the left over assets) to your surviving spouse OR to your surviving issue (e.g. children, grandchildren) OR in trust to your surviving spouse with the remainder going to your surviving issue when your spouse passes away.

Remember: this Last Will and Testament is lawyer-prepared, customizable, affordable, and comes with a ton of free guidance (a video tutorial and written guides!). All for just a fraction of the cost a lawyer would charge (which in 2010, was over $344 for a simple Will for just one person: check out page 3 of 6 in this national fee range report).

How can a Will be revoked?

A Will can only be revoked only by:

  • The Testator / Testatrix getting married, unless there is a declaration in the Will that it is made in contemplation of a marriage to a particular person: sections 14(1)(a) and 15 of the Wills Act.
  • Making and properly executing another Will: section 14(b) of the Wills Act.
  • A written declaration with an intention to revoke which follows the rules of making a Will: section 14(c) of the Wills Act.
  • The Will being destroyed (e.g. burned, torn, etc.) by the Testator / Testatrix or some person in his or her presence and by his or her direction with the intention of revoking the Will: section 14(d) of the

Wills Act. There must be both a physical act and an intention to destroy (so a symbolic or accidental destruction will not suffice!).

It is also worth mentioning that a UNLESS a Testator / Testatrix indicates otherwise in their Will, if they give an interest in property to their spouse OR appoint their spouse as their Executor or Trustee, and then become divorced from their spouse before the die, then that gift or appointment IS REVOKED: section 16 of the Wills Act. The Will takes effect as though the spouse had died before the Testator / Testatrix! Just be mindful of this! Please note that section 16 only applies to a gift to, or appointment of, a spouse divorced after August 1, 1981.

How can a Will be revived?

A Will that is revoked can be revived only under section 18(1) of the Wills Act:

  • By a Will being made; or
  • By a Codicil being made which shows an intention to give effect to the Will or the part of the Will that was revoked.

Under section 18(2) of the Wills Act, unless the contrary can be shown, there is a presumption that, when a Will is partially revoked and then afterward wholly revoked and then revived, the revival does not extend to the part that was partly revoked (i.e. before the whole revocation). If you didn’t understand that last part, just re-read it J.

What if there is a Mistake in a Will?

A Will is only valid if the Testator / Testatrix knew and approved of its content. If words have been mistakenly inserted into a Will without such knowledge or approval, then a court may strike out those specific passages or phrases. A Court could also rectify a Will by deleting characters, words, or provisions BUT ONLY if the Court is satisfied, on clear and convincing evidence, that the Will is problematic by failing to express the Testator / Testatrix’ intentions. Importantly, a number of British Columbia cases have concluded that, while a Court may in limited circumstances rectify a Will by DELETING words, it generally has NO jurisdiction to ADD or SUBSTITUTE words to a Will: see Ali Estate (Re), [2011] B.C.J. No. 815; Milwarde-Yates v. Sipila, [2009] B.C.J. No. 402; and Alexander Estate v. Adams, [1998] B.C.J. No. 199.

Note: the Wills, Estates, and Succession Act, S.B.C. 2009, c. 13 has been passed by the British Columbia Legislature and is expected to take effect in late 2012. That Act gives the Court broad powers to rectify a Will. Under section 59(1) of the Wills, Estates and Succession Act, a Court may (on application for rectification) order that a Will be rectified if it finds that the otherwise valid Will does not carry out the Testator / Testatrix’s intentions because of: an accidental slip or omission; a misunderstanding of the Testator / Testatrix’s instructions by the lawyer, notary or another person involved in the preparation of the Will; or a failure to carry out the Testator / Testatrix’s instructions in drafting the Will. An application for rectification must generally be made no later than 180 days from the date the representation grant is issued: section 59(3).

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