Oct

11

Last Will and Testament British Columbia (Part 2): Legal Requirements

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Last Will and Testament (British Columbia)

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).

Legal Requirements for a Will to be valid in BC

There are only a few requirements for a Will to be valid and enforceable. But if you don’t do these basic things properly, the Will can be contested through litigation, which will cost thousands of dollars (or more), destroy relationships, waste years, etc.

In Writing

First, in British Columbia, for a Will to be valid, it must be in writing. It may be typed or handwritten, or both. So says section 3 of the Wills Act.

Legally Competent

Second, a Will must be made by a legally competent person (i.e. the Testator / Testatrix must be 19 years old or older and mentally capable of making a Will). The Testator / Testatrix must understand the nature of the act of making a Will and its effects. This is often a litigious issue: some will claim that the person making the Will was not sufficiently competent to make the Will as they did not understand the purpose and effects of making the Will. Worth mentioning is that a person under 19 years old CAN make a Will if he or she is or has been married, is a member of a component of Canadian Forces, or is a mariner or seaman: section 5(1) of the Wills Act.

Signature

Third, the Testator / Testatrix must sign the Will: section 4 of the Wills Act. Something less than a signature (e.g. initials) will be sufficient if it was intended to represent the name and be a signature: In the Goods of Chalcraft, [1984] 1 ALL E.R. 700 and Re Schultz Estate [1984] 4. W.W.R. 278 (Sask. Surr. Ct.)). If necessary, someone can guide the Testator / Testatrix’ hand, BUT this requires the Testator / Testatrix’ clear direction or consent: Re White (1984), 1 D.L.R. 572 (N.S. App. Div.). Someone other than the Testator / Testatrix may sign on their behalf – so long as they do so in the Testator / Testatrix’ presence and under his or her direction: section 4(a) of the Wills Act. So there must be some words, gestures, or other act which shows that the Testator gave a direction or request. If someone other than the Testator / Testatrix DOES sign on their behalf (i.e. either in their own name OR in the Testator / Testatrix’ name), then this should be noted in the Will – for example, in the attestation (i.e. the place where the Testator / Testatrix acknowledges signing the Will) on the last page.

The Wills Act says that a Testator / Testatrix must sign a Will “at its end”: section 4(a). But in a saving provision, that Act clarifies that the Testator / Testatrix’ signature will be deemed to have been placed at the end of the Will if the signature “is placed at or after or following or under or beside or opposite to the end of the Will so that it is apparent on the face of the Will that the testator intended to give effect by the signature to the writing signed as his or her will”: section 6(1). Indeed, section 6(2) goes on to say that a Will is NOT invalid because:

  • the signature does not follow immediately the end of the will;
  • a blank space intervenes between the concluding words of the will and the signature;
  • the signature is placed among the words of a testimonium clause or of an attestation clause or follows or is after or under an attestation clause either with or without a blank space intervening, or follows or is after or under or beside the name of a subscribing witness;
  • the signature is on a side or page or other portion of the paper or papers containing the will on which no disposing part of the will is written above the signature;
  • there appears to be sufficient space to contain the signature on or at the bottom of the side or page or other portion of the same paper on which the will is written and preceding that on which the signature appears.

Finally worth mentioning is that section 6(3) says that a disposition or direction that is UNDERNEATH the signature HAS NO EFFECT!

Witnesses

Next, the Testator / Testatrix must sign the Will before two witnesses (over 19 years old) who are both present during signing: section 4(b) of the Wills Act. The witnesses must also acknowledge that this was all done – typically in the attestation clause. The Supreme Court Civil Rules, B.C., Reg. 168/2009 say that, if there is no attestation clause in a Will (or it is insufficient), then the court registrar MUST require an affidavit from at least one of the witnesses if they are still living TO PROVE that the requirements of the Wills Act were complied with: Rule 21-5(10). An affidavit is a statement that is either sworn or affirmed by the deponent (i.e. the Witness) before a Commissioner of taking Oaths in British Columbia. The deponent swears or affirms that the statements contained in the affidavit are true. These affidavits will come in handy when the Will needs to be “probated” through the courts (i.e. legally processed to establish the validity of a Will before a judicial authority). If no affidavit is available, then an affidavit must be provided from any other person present at the execution of the Will: Rule 21-5(11). If no such affidavit is available, then an affidavit must be provided to explain all of this – while still trying to prove that the Will was properly executed. To avoid wasting time and money going through this process, it is best to simply have the witnesses sign affidavits at the same time they witness and sign the Will. It is not necessary for witnesses to see or read any part of the Will, or be aware of its contents. Neither of the witnesses can be beneficiaries or their spouses, or else transfers of real or personal property to them are voided: section 11 of the Wills Act.

It is a good practice for all parties to initial in the bottom right hand corner of every page leading up to the signing page. While there may be other requirements for a Will to be valid, those requirements are often examined and dealt with by a lawyer who is trained and experienced in making the Will as litigation-proof as possible.

Worth mentioning is that “Holograph Wills” are generally NOT acceptable in British Columbia. A Holograph Will is completely hand-written and signed and dated by the Testator / Testatrix. In other provinces (e.g. Ontario, Alberta, New Brunswick, Newfoundland, Manitoba, and Saskatchewan), a Holograph Will can be valid and there is no requirement for witnesses. That said, valid Holograph Wills made outside of British Columbia can still be valid and admissible in British Columbia with respect to moveable property for the purposes of probating an estate.

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