Saturday, October 08, 2005

British Columbia's Technical Requirements for Making a Will

The law in British Columbia requires strict compliance with technical requirements for making a will. Failure to comply with these requirements will thwart the intentions of the person making the will (called the “testator”).

Under sections 3 and 4 of the Wills Act, R.S.B.C. 1996, c. 489, a will is not valid unless it is in writing, and signed at its end by the testator (or signed in the testator’s name by some other person in the testator’s presence and by the testator’s direction), the testator makes or acknowledges the signature in the presence of two witnesses, and the witnesses sign their names in the presence of the testator.

A beneficiary or the spouse of a beneficiary must not be one of the two witnesses to the will or the gift to the beneficiary is invalid.

In contrast to some other provinces where the legislation gives the courts some discretion to relieve against minor mistakes where there has been substantial compliance with the rules, the Wills Act does not give the courts this power.

The British Columbia courts have interpreted the requirements of the Wills Act strictly. For example, in Toomey v. Davis, 2003 B.C.S.C. 1211, the testator signed a codicil amending his will in the presence of two witnesses. However, one of the witnesses did not sign the codicil in the presence of the testator, but signed the codicil later. Despite the fact that Mr. Justice Truscott was "completely satisfied that the codicil does express the true intentions of the testator as proven by the evidence," and that the failure of the witness to sign in front of the testator was inadvertant, the court was unable to give effect to the codicil.

There is a very limited exception in British Columbia to the rule that two witnesses must witness and sign a will in the manner described above. Members of the Canadian Armed forces while on active service and seamen while at sea may make a valid will by writing the will and signing it at the end, without the need for witnesses.

The law in some other provinces allows anyone to make a valid will by writing the will in his or her own handwriting and signing it at the end, without witnesses (a “holograph will”). But with the exception for members of the armed forces on active duty and seamen at sea, British Columbia law does not recognize holograph wills as valid.

I have heard that the British Columbia Law Institute in its review of succession law in B.C. is considering whether to recommend some changes to our legislation allowing the courts to uphold wills where there has been substantial compliance with the formal requirments of the Wills Act.

I would be interested in reading any comments on whether it would be a good idea to relax British Columbia's strict requirments, and if so, how.

No comments: