A Will is an important document. It allows a person to set out
what they want to happen to their affairs after they die. The Will
speaks for a person after that person is no longer alive to speak
for themselves. The law has long held that a Will must formally
comply with various technicalities, recognizing the importance of a
Will as an important and unique type of document. In particular, to
be valid in British Columbia, a Will must be: (1) signed by the
person, and (2) witnessed by two other people.
But what happens if the Will is not signed by the person, or if
there were not two witnesses?
Previously, there was little that could be done. The court had
no discretion to dispense with any of the formalities. A Will that
failed to comply with the formalities was invalid. However, British
Columbia has recently passed new laws to allow a court to
"cure" a problem with a Will. In other words, a Will may
now be valid, even though the Will was not properly signed or
When deciding whether to cure a deficiency in a document or
record purporting to be the Will of a deceased person, the court
looks at two factors: (1) authenticity, i.e. whether the record was
actually made by the deceased person; and (2) whether or not the
record reflects the fixed and final testamentary intention of the
Evidence of authenticity may include:
(a) where the document was found;
(b) comparisons to other reliable documents written by the
(c) evidence to demonstrate a signature of the deceased was
their usual signature (such as a driver's license or a
(d) evidence relating to the language the deceased was able to
write in; and
(e) evidence of the deceased's relationships to the
beneficiaries in the document (to demonstrate whether there is a
rational basis for the disposition).
Evidence of fixed and final testamentary intention will likely
come from the record itself, and may include:
(f) the presence of the deceased's signature;
(g) the presence of the deceased's handwriting;
(h) the presence of witness signatures;
(i) the presence of revocations of previous Wills;
(j) the presence of funeral arrangements;
(k) the presence of specific bequests; and
(l) the title of document.
Other evidence of fixed and final testamentary intention may
include where the document was left, if the document accorded with
the deceased's other statements and actions, the type of paper
the document was written on (i.e. scrap paper or something more
formal looking), the timing of the making of the record, and a
rational basis for making the gifts based on the relationship of
the deceased to the beneficiaries.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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It is not uncommon for parents to provide monetary gifts to their adult children. Parents may wish to help their child with a down payment on a property, or help pay out their child's existing mortgage.
On March 31, 2014, BC's new Wills, Estates and Succession Act1 ("WESA") will come into force. WESA introduces new protections for beneficiaries of estates that are in danger of being disputed or deemed ineffective by a court.
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