Recording your intentions about who will inherit your property and assets after death is always highly recommended. Most people turn to a lawyer or notary to assist with this important task but there are some who will communicate their intentions in somewhat less formal fashion.
In our years of working in family law, we’ve seen it all when it comes to wills. Some individuals draft up a handwritten will; others will send an email or a Word document with their intentions. While these types of wills don’t meet the required steps to be considered a “valid” will in British Columbia, they can still be accepted by the courts.
What are the Formal Requirements of a Will?
Signed into law in 2014, British Columbia’s Wills, Estates and Succession Act acts as the legal framework for handling wills and estates in our province. WESA Section 37(1) sets out the formal requirements for a will. A valid will must be:
- In writing;
- Signed at the end by the will-maker (or the signature at the end must be acknowledged by the will-maker as their own, in the presence of two or more witnesses); and
- Signed by at least two witnesses in the presence of the will-maker.
What if a Will Doesn’t Meet the Formal Requirements?
Prior to the introduction of the Wills, Estates and Succession Act in 2014, a will missing any of these key elements would be considered necessarily invalid in the eyes of the law. A key legal mechanism introduced by WESA is something called a “curative provision.” This enables a court to cure, or fix, the deficiencies found in an invalid will and pronounce it valid.
How Can a BC Court Fix an Invalid Will?
Section 58 of the Wills, Estates and Succession Act grants a court the ability to “cure” a “will” that doesn’t meet the formal requirements. It exists to ensure legal formalities don’t stand in the way of a deceased individual having their final intentions granted.
Typically, the court will decide on a balance of probabilities whether the following is true of the invalid will:
- Is the document authentic?
- Does the document represent the fixed and final expression of the deceased’s intentions?
The court can consider various factors in answering these questions. In previous cases, signatures, handwriting, title of the document and revocation of previous wills have all been used to establish the authenticity of a document.
There is no minimum level of formality that must exist for a court to “cure” it and render it valid. However, generally, the further an invalid will strays from the formal requirements, the more difficult it will be to convince a court to validate it.
Get in Touch
If you need help navigating any aspect of the estate process, get in touch with us today. Our lawyers are ready to assist you with any questions and concerns you may have regarding this and other family law matters.