Proposed Reforms to British Columbia's Technical Requirements for a Valid Will

As I wrote here, British Columbia has strict technical requirements for making a valid will. Specifically, under sections 3 and 4 of the Wills Act, RSBC 1996, c. 489, a will is not valid unless it is in writing, and signed at its end by the testator (or the will is 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. (The "testator" is the person whose will is made.)

The Succession Law Reform Project Committee in a report published by the British Columbia Law Institute has recommended new legislation that would give the Supreme Court of British Columbia the power to give effect to a document that does not comply with the technical requirements for a valid will. The court must first be satisfied that the document reflects the testator's intentions. This power to dispense with the technical requirements for a valid will could be used by the court to uphold an electronic will.

A provision like the one the Committee is recommending would probably have saved the wills in Toomey v. Davis, 2003 B.C.S.C. 1211, Ellis v. Turner (1997), 20 E.T.R. (2d) 306 (B.C.C.A.), and Bolton v. Tartaglia (2000), 33 E.T.R. (2d) 26 (B.C.S.C.).

The Committee is also recommending that the age for making a valid will be lowered from 19 to 16. Currently, only those who have been married, members of the armed forces on active duty, or seaman or mariners at sea, may make a valid will if they are less than 19 years of age.

But, the Committee is not recommending that British Columbia law recognize holograph wills (although the court could give effect to holograph wills in specific cases under the proposed power to dispense with the technical requirements for a valid will). A holograph will is a will that is entirely in the testator's own handwriting, and that is signed by the testator.

I would like to see British Columbia pass legislation to recognize holograph wills. Not that I am a big fan of holograph wills. But most other provinces do recognize holograph wills, and on balance, I favor consistency. As the law stands, if a resident of Alberta who makes a holograph will in accordance with Alberta law owns land in British Columbia, the holograph will is not effective to in British Columbia to dispose of the land on the Albertan's death. Why not recognize holograph wills?
[Since writing the above, I have noticed that the Committee is also proposing changes to the rules for recognizing wills made outside of B.C., that may solve this problem.]

I give the recommendations discussed in this post a qualified thumb-up. The full report, Wills, Estates and Succession: A Modern Legal Framework, is available here.