The Wills Variation Act and the upcoming WESA - definition of a "will"

As outlined in our articles on the Basics, in order for a claimant to bring an action under the WVA (soon to be Wills, Estates and Succession Act – March 31, 2014), a valid will must exist. The upcoming WESA looks to provide some changes to the existing Wills Act.

Section 3 and 4 of the Wills Act are to be replaced by Section 37 of the WESA which detail that a will must be in writing and signed in the presence of at least two witnesses.  Evidence in writing allows for certainty regarding the will-maker's identity and that their intent was carefully carried out.

The new WESA provides a section in the definition of a “will” as well as s. 37 which enables the court to cure an improper will with the power contained in s.58. 

"will" means

(a) a will,

(b) a testament,

(c) a codicil,

(d) an appointment by will or by writing in the nature of a will in exercise of a power,

(e) anything ordered to be effective as a will under section 58 [court order curing deficiencies], or

(f) any other testamentary disposition except the following:

(i) a designation under Part 5 [Benefit Plans];

(ii) a designation of a beneficiary under Part 3 [Life Insurance] or Part 4 [Accident and Sickness Insurance] of the Insurance Act;

(iii) a testamentary disposition governed specifically by another enactment or law of British Columbia or of another jurisdiction in or outside Canada;

How to make a valid will

37  (1) To be valid, a will must be

(a) in writing,

(b) signed at its end by the will-maker, or the signature at the end must be acknowledged by the will-maker as his or hers, in the presence of 2 or more witnesses present at the same time, and

(c) signed by 2 or more of the witnesses in the presence of the will-maker.

(2) A will that does not comply with subsection (1) is invalid unless

(a) the court orders it to be effective as a will under section 58 [court order curing deficiencies],

(b) it is a will recognized as valid under section 80 [validity of wills made in accordance with other laws], or

(c) it is valid under another provision of this Act.

 Court order curing deficiencies

58  (1) In this section, "record" includes data that

(a) is recorded or stored electronically,

(b) can be read by a person, and

(c) is capable of reproduction in a visible form.

(2) On application, the court may make an order under subsection (3) if the court determines that a record, document or writing or marking on a will or document represents

(a) the testamentary intentions of a deceased person,

(b) the intention of a deceased person to revoke, alter or revive a will or testamentary disposition of the deceased person, or

(c) the intention of a deceased person to revoke, alter or revive a testamentary disposition contained in a document other than a will.

(3) Even though the making, revocation, alteration or revival of a will does not comply with this Act, the court may, as the circumstances require, order that a record or document or writing or marking on a will or document be fully effective as though it had been made

(a) as the will or part of the will of the deceased person,

(b) as a revocation, alteration or revival of a will of the deceased person, or

(c) as the testamentary intention of the deceased person.

(4) If an alteration to a will makes a word or provision illegible and the court is satisfied that the alteration was not made in accordance with this Act, the court may reinstate the original word or provision if there is evidence to establish what the original word or provision was.

 

The courts have been given the power to provide relief to someone that has failed to comply with all the formal requirements of a will.  This change has been put in place as the stringent requirements of a will are often self-defeating and the court is to try and give effect to a will-maker’s intention rather than deny them (in the absence of fraud).  An interesting point is that there are no minimum requirements for a document to meet in order to be given effect as a will.