Did you know that you should not unstaple an original will? In this article we will discuss some of the reasons why it is important to keep a will stapled once signed.
A will is a legal instrument which sets out how the will maker’s estate (including assets and liabilities) will be distributed upon his or her death. When a person passes away leaving a will, the executor named in the will may need to obtain a grant of probate from the Supreme Court of British Columbia in order to administer and distribute the will maker’s estate. Whether or not the executor will need to obtain a grant of probate depends on the policies of third parties (such as financial institutions, the Land Title Office, ICBC, etc.) to which the will maker’s assets relate.
A grant of probate is proof from the Supreme Court of British Columbia of the validity of the will and the powers of the executor named in the will. The process to apply for a grant of probate is set out in the Wills, Estates and Succession Act (http://www.bclaws.ca/civix/document/id/complete/statreg/09013_01#division_d2e8579) as well as the British Columbia Supreme Court Civil Rules (http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/168_2009_03_1#rule25-3).
As part of the probate application, the executor named in the will being probated must swear or affirm an affidavit (a sworn statement of facts) confirming whether or not there are “interlineations, erasures or obliterations in, or other alterations to, the will”. If the answer is in the affirmative, the executor must swear or affirm an additional affidavit explaining the circumstances surrounding the unstapling of the will and confirming that all of the pages of the original will are still present and that it has not been altered in any other way.
In the event that the will has additional staple holes or staples, a presumption arises that the will may have been tampered with. The executor named in the will must disprove such the presumption by providing facts to the contrary in the form of an additional affidavit (see above). If the will is tampered with, the Supreme Court of British Columbia may declare the will invalid and a prior will (if any) or the intestacy rules under the Wills, Estates and Succession Act will apply which may not reflect the will maker’s current wishes. For more information about the intestacy distribution scheme, please visit our blog post “When Should You Make a Will?”, which can be found at: http://touchstonelawgroup.com/kelowna-lawyers/make-will/
If a will has been unstapled, it is prudent to promptly make notes regarding the circumstances surrounding the unstapling including, without limitation, the person who unstapled the will, the date, the location and the purpose of unstapling the will. These facts will be important in preparing and confidently swearing or affirming the supplemental affidavit if a grant of probate is required.
If you have any questions regarding the probate process or estate planning or administration in general, please do not hesitate to reach out to one of our lawyers practicing in the area of estate law.
Author: Danielle (Dani) Brito
This information is general in nature only. You should consult a lawyer before acting on any of this information. This information should not be considered as legal advice. To learn more about your legal needs, please contact our office at (250)448-2637 or any of our lawyers practicing in the area of estate planning and estate administration at the following:
Jennette Vopicka: firstname.lastname@example.org Danielle (Dani) Brito: email@example.com Jane Otterstrom: firstname.lastname@example.org