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When Exactly Is Your Will A Will?

Under the Wills Act,  a valid Will had to be in writing signed before two witnesses who also signed the Will at the same time in each others' presence. These requirements were mandatory. If they were not followed, the document was not a Will.

On March 31, 2014 the Wills Estates and Succession Act ("WESA") was enacted in B.C and applies to the estate of any person who died after March 31, 2014. WESA replaced the Wills Act but still requires a valid Will to meet the previous Wills Act requirements. Section 58 of WESA gives the Supreme Court of  B.C. ("SCBC")  the discretion to recognize a non-compliant document as a Will or a change to a Will.  On February 6, 2015, Madam Justice Dickson released her decision in Estate of Young 2015 BCSC 182 which was the first reported decision of the BCSC concerning s. 58 of WESA.

Ms. Young died on July 10, 2014 after WESA came into force. Her Will specified there should be a distribution of her personal belongings according to a memorandum prepared and signed by her together with her Will. No such memorandum was found or even apparently prepared. The Executor did find two documents on Ms. Young's table at home prepared after the Will, which provided for a distribution of Ms. Young's personal belongings.

The first document was dated June 17, 2013. It was signed by Ms. Young but not witnessed. Ms. Young later provided a friend with an unsigned copy of  the June 17 document and asked her friend to make sure these wishes were followed. The unsigned June 17 document given to the friend was otherwise the same as the signed version of the document found in Ms. Young's home.

The second document was dated October 14, 2013 and was also found on the table with the signed June 17, 2013 document. The October 15, 2013 document provided for a different distribution of personal belongings. It was not signed by Ms. Young, who did not talk to anyone about it.

The court was asked to determine whether the June 17, 2013 or the October 15, 2013 documents could be legally considered as part of Ms. Young's Will and be followed, or not.  The court's determination was based on the evidence.  Relevant factors can include format and wording, a signature, handwriting, witness signatures, and so on.  The further away a document departs from the formal requirements of a valid Will, the harder it may be for the court to find the document should be legally recognized.

Based on the evidence, Madam Justice Dickson found that the June 17 document was a valid testamentary document and be treated as part the Will. She also decided the October 15 document should not be  recognized as part of the Will.

This decision is important because it demonstrates how WESA adds flexibility to the law relating to Wills and estate distribution in B.C.  It also demonstrates why people should not rely on informal notes or other documents assuming they will be recognized as a valid Will. People who do not follow the rules about preparing and signing a Will are walking on thin ice. They are expecting the court to decide recognize a non-compliant document as a Will. This may or may not happen depending on the facts and circumstances, and each case stands largely alone. 

Consequently, if you want to make sure that your wishes are complied with, there is no substitute for a valid Will. Doing anything less invites uncertainly, possible failure, and additional expense to your estate to deal with the situation.  Everyone should prepare a valid Will and use the assistance of a trained and experienced professional to ensure wishes are properly described and followed.

Will - Lawyers in Kelowna