When someone passes away, their estate is distributed according to the instructions they left behind in their will. In BC, the Wills, Estates, and Succession Act (WESA) provides clear rules for creating a valid will that individuals should strive to fulfill when crafting their own.
But what happens if a will is incomplete, informal, or doesn’t meet the usual legal requirements? WESA also gives BC courts significant flexibility and power over wills that otherwise would be deemed informal or invalid.
Whether you are dealing with a formally drafted will, an informal will, or are questioning if another type of document may be used to implement a loved one’s final wishes, understanding how WESA works can make a crucial difference for families navigating the estate process.
What Constitutes a Valid Will?
In BC, a will is valid when it meets WESA’s formal requirements. Section 37 outlines these necessities. A valid will should be:
- In writing
- Made by the will-maker, who must be at least 16 years old and mentally capable of understanding the nature of the will, the extent of their property, and the consequences of their decisions
- Signed by the will-maker
- Witnessed by two adults, aged 19 or older, and mentally capable
When these requirements are satisfied, it is straightforward for the court to validate the will after the will-maker’s passing, reducing the likelihood of disputes. It is important to note that in BC, a will does not need to be notarized to be legally valid.
Even with formal compliance, clarity in the document is key: vague or poorly drafted language can still create challenges, while clear adherence to WESA’s standards provides the strongest protection for the testator’s intentions.
When Can an Informal Will Be Accepted?
Even with clear rules in place, not every will is prepared under ideal circumstances. People may become ill, face a sudden emergency, or simply fail to observe the usual formalities. WESA recognizes these and other complex realities through Section 58, which allows the BC Supreme Court to “cure” deficiencies in a will and declare an invalid will legitimate even when it does not meet the traditional requirements. This provision makes British Columbia one of the most flexible jurisdictions in Canada when it comes to determining what counts as a will.
Under Section 58, the court may accept a wide variety of documents as valid wills, including:
- Holographic wills
- Unsigned wills
- Drafts
- Personal notes
- Collections of letters or diary entries
- Audio or video recordings
Because WESA defines “record” broadly, virtually any medium that captures a person’s final wishes can potentially be treated as a will if the medium expresses clear testamentary intentions. While an informal will can still give rise to disputes, the law provides families with a mechanism to have the court recognize the deceased’s true intentions.
Limitations of Curing Deficiencies
Although Section 58 provides broad discretion, the court does not automatically validate any document submitted as a will. There must be strong evidence that the record reflects the deceased’s genuine intentions regarding the distribution of their estate. The surrounding circumstances carry significant weight. For example, a hastily written note created during a medical emergency may carry more evidentiary value than an undated, unsigned document with no context. These considerations help the court determine whether a document was meant to serve as a final expression of the will-maker’s wishes.
There are also strict limits on when deficiencies can be cured. If the will-maker lacked testamentary capacity at the time the document was made, a court cannot validate it. Likewise, a document created under undue influence, duress, or coercion cannot be upheld as a valid will. The court also cannot accept a record that is too vague or ambiguous to clearly identify the deceased’s wishes. In these cases, the document may be treated as an invalid will, resulting in the estate being distributed according to intestacy rules.
Why Curing Deficiencies Matters
BC’s flexible approach to validating wills exists for good reason. Without it, many families would face the hardship of losing out on inheritances simply because a will was not formally completed. The ability to validate otherwise invalid wills helps reduce the risk of intestacy, ensuring that assets are not automatically distributed according to provincial formulas when the deceased clearly intended something else. This flexibility allows courts to focus on honouring the will-maker’s intentions.
For families, the ability to rely on unconventional records can make a significant difference. Inheritance often affects someone’s financial security for years to come. When the law allows personal notes, recordings, or drafts to be recognized as valid wills, it ensures that the deceased’s final wishes are respected, even when the will-maker did not complete a formal document.
How Stephens & Holman Can Help
If you believe a loved one left behind documents that could constitute a will, or if you are concerned that an invalid will may affect your inheritance, Stephens & Holman can help. Our lawyers have extensive experience handling estate litigation matters and assisting families throughout BC. With 17 offices in and around Vancouver and the rest of BC, we are equipped to help you navigate the complex issues that arise when a will’s validity is in question. Contact us to learn more or to schedule an appointment.