Validity of Wills in British Columbia
There are many considerations and variables when writing your Last Will and Testament. The law can be quite complex and has recently evolved, culminating in the new Wills, Estates and Succession Act (the “WESA”) which came into force on March 14, 2014. WESA repeals six separate pieces of legislation that currently govern the laws applying to estate planning in BC. Below are some examples of various areas where problems can arise when a person is planning the terms of their Will:
Estate planning is becoming increasingly complicated, particularly with the predominance of blended families through numerous generations. By writing your own Will, you risk having it declared invalid for any number of inadvertent errors or omissions. You also risk unintended consequences when your Estate assets are distributed, if the terms of your Will are not set out correctly.
There are certain rules and formalities that must be met in the terms of your Will and in its execution. For example, a beneficiary or spouse of a beneficiary must never be a witness to a Will – the Will remains valid, but the gift to the beneficiary is invalid.
Also, if you are a BC resident, do not create a handwritten Will, also called a holographic Will. Although it is legitimate in some provinces, is not valid in BC for Probate purposes. A Will must be typed and witnessed by two independent witnesses. Further, after a Will is signed and witnessed, if you make changes such as erasing, crossing out or otherwise changing a Will, it invalidates the Will.
It is important that your Will include your full legal name that appears on your Birth Certificate and property ownership documents. If you use a nickname or shortened name in your Will that does not match your other legal documents, this will cause problems and delays in the Probate process. Also, the language in your Will must be clear. If your intentions are not stated with absolute clarity, it could be misinterpreted, easily contested and the cause for serious delays in the administration of your Estate assets to your loved ones.
Also, your Will is automatically revoked when you marry, unless you include specific wording indicating that it was made in contemplation of marriage to your new spouse.
A do-it-yourself will kit is not ideal to draft your Will. It may not comply with the laws in BC, and without a complete understanding of the laws applying to Wills, you take the risk that your Will contains language that will lead to an unintended result.
A lawyer can help you to understand the wide range of issues that arise with the preparation of estate planning documents. If you would like advice regarding the preparation or amendment of these important legal documents or for more information regarding such matters please contact Chahal Priddle LLP at 250-372-3233 to set up an appointment today.