In our very first blog post titled “Can I just write where I want my stuff to go on a napkin” on January 18^th, 2013 we discussed the form and execution requirements of valid wills. Since that post, the Wills, Estates and Succession Act, SBC 2009, c 13 (“WESA”) came into force in British Columbia which replaced the Wills Act RSBC 1996, c 489.

Wills Act:

Under the Wills Act, any document, regardless of form, could be upheld as a valid will. To be a valid will, the formalities under the Act must be satisfied. For instance, to be validly executed, your Will must be in writing, signed by you, and signed by two witnesses who are not named as beneficiaries under your Will.

WESA:

WESA did not introduce new form requirements, nor did it change the execution requirements. One of the significant changes under WESA is the introduction of the Court’s power to “cure deficiencies” with regards to the formalities under WESA. What does this mean to you and your Will? Regardless of the form of your Will and whether or not your Will was executed in accordance with the formalities under WESA, the Court may order your Will to be fully effective. The Court may make this order if the document is authentic and represents your testamentary intentions – ie. your wishes with regards to how your estate will be distributed on your death.

The Court’s curative power is very broad. It is believed that the Court may exercise its curative power to uphold “holograph wills” (ie. handwritten wills that are signed by the will maker without witnesses present) and electronic wills. However, since the Court’s curative power is still relatively new in BC, it is unclear exactly how the Court will exercise its discretion in practice.

So, do the formalities under WESA even matter? Absolutely! If you want to make sure that your Will has its intended effect, your safest course of action is to satisfy the formalities in WESA including the execution requirements. The curative discretion of the Court should only be used as a last resort to uphold your Will. There are two big reasons why you should not rely on the Court to uphold and give effect to your Will:

1. The Court is not obligated to exercise its curative power. If the Court chooses not to uphold your Will, your Will will not be effective and your estate will be distributed buy testosterone in accordance with the rules of intestacy under WESA.
2. The process to obtain a Court order can be time-consuming, costly and stressful.

One important thing to note about the Court’s curative power is that it does not relate to the interpretation of your Will. The language of your Will will be carefully examined before your estate is distributed. If the language used in your Will is unclear your family will likely be faced with expensive and timely court applications to determine your testamentary intentions and the distribution of your estate will be delayed. As a result, you are well advised to discuss drafting your Will with a lawyer who is familiar with the special wording commonly used in wills to minimize the risk of ambiguities and costly litigation.

If you are interested in learning more about the impact of WESA check out our blog post titled “WESA One Year Later – Changes in the Wills legislation and the impacts on your Will” from March 31^st, 2015 or contact our office at 250-448-2637.

If you need further advice on how to draft or execute a valid will, contact our wills and estates team at Touchstone Law Group LLP – we are here to simply the complicated!

Author: Danielle 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 estate planning needs, please contact our office at (250)448-2637 or any of our lawyers practicing in the area of wills & estates at the following:

Una Gabie: una@touchstonelawgroup.com

Jennette Vopicka: jennette@touchstonelawgroup.com

Danielle (Dani) Brito: danielle@touchstonelawgroup.com