What makes a Will valid in British Columbia?

Understanding

Those who are unfamilar with wills and who have never had one often typically wonder:

• If I want a will, how am I supposed to get it prepared?
• Is a lawyer required?
• Is there an age requirement? Is there a property requirement?
• How do I make it "final"? Do I just sign it?
• Where do I sign it? Do I have to sign it at a special location?
• Do I need to sign it on just one page or on every page?
• Whom do I sign it with?
• Do I need witnesses? Who is allowed to be a witness?
• Does it need to be stamped or sealed?

Basis

The law regarding wills in Canada is set at the provincial level, with each province having its own wills statute.

The statute for the province of British Columbia is the Wills, Estates and Succession Act, S.B.C. 2009, c. 13.

We will directly examine the sections of it that give answers to these questions and the overall question of what makes a valid will in British Columbia.

As we proceed, know that

• ellipses - ... - represent parts omitted intentionally due to be being considered extraneous,
• square brackets - [] - represent a paraphrasing of original parts for brevity, and
• the word "testator" means "will-maker" or "person whose will it is".

An essential summary is given at the end of the article if you wish to skip the deep dive.

Age & Mental Capacity

A person must be sixteen (16) years of age or older and have mental capacity in order to make a will.

The age of majority in British Columbia happens to be nineteen (19) years. There are general limitations on the competency of people under that age, i.e. minors, to deal with property. In contrast, when it comes to wills, the applicable age limitation is a bit more liberal, allowing a person to write a will for themselves a bit earlier at sixteen (16) years.

The requirement of mental capacity reflects the need that the intent a person expresses regarding their property be lucid, informed, and meaningful.

There is an obscure exception to the age requirement. A will may be made at any age by a member of the Canadian, British Commonwealth, or other allied military on active duty.

36 (1) A person who is 16 years of age or older and who is mentally capable of doing so may make a will.

...

38 (1) A member of the Canadian Forces while placed on active service under the National Defence Act (Canada), or a member of the naval, land or air force of any member of the British Commonwealth of Nations or any ally of Canada while on active service may, regardless of the member's age, make a ... will ...

Execution

The conventional form of proper execution - that is, proper signing and witnessing - of a will is that it must be drafted in writing, signed at the end by the will-maker in the simultaneous presence of two (2) witnesses, and then signed by the said witnesses in the presence of the will-maker.

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 the will-maker's signature, 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.

The requirement of two witnesses to the signing serves to ensure that it did happen and was not a forgery. The requirement provides a baseline assurance; one remains free to challenge in Court a signing where the witnessing was suspect.

There is no requirement of a lawyer's involvement - either in preparation or signing and witnessing. A lawyer's role has traditionally been to advise - to take instructions and draft the Will using common will templates and software.

However, now, due to the convenience of the internet, we provide direct access to the will-drafting software that a lawyer would use, cutting out the need for one.

Thus one is legally free to choose whether to complete a will through a lawyer, a traditional paper will kit, or a modern will-drafting platform such as ours.

There is no requirement of any notarization, stamp, or other special marking beyond the validation provided by the will-maker and the witness' signatures.

There is no specified minimum property requirement to write a will. A will speaks to "what the person owns at the time of their death, however much it may be".

Note that the rule that a will-maker sign their will has an alternative part. Instead of signing their will themselves as one normally would, a will-maker may direct another person to sign their will on their behalf. An otherwise mentally capable and communicative will-maker might do such a "substitute signing" where they physically cannot grip a pen and sign for themselves due to disability or deficiency in the hands.

1 (1) In this Act: ... "will-maker's signature" includes a signature made by another person in the [following] manner[:] ... A reference to the signature of a will-maker includes a signature made by another person in the will-maker's presence and by the will-maker's direction, and the signature may be either the will-maker's name or the name of the person signing.

Electronic Execution

It has normally been required that witnessing be done in-person: the will-maker and the two witnesses must be physically present together, in front of each other, for the signing event.

In 2020, during the COVID outbreak, electronic execution of a will became allowed.

The scope of "presence" was expanded to allow for not just witnessing in-person but witnessing by live videoconferencing. This would necessitate signing in "counterparts" and it was allowed - separate copies of the will for each of the will-maker and witnesses to sign their portion individually at their end could then be read together as a bundle representing a single fully signed copy.

The scope of "signature" was expanded to include an electronic signature. The form of a will made "in writing" was expanded to include a will in electronic form.

35.1 (1) ...

"communicate" means communicate using audiovisual communication technology, including assistive technology for persons who are hearing impaired or visually impaired, that enables persons to communicate with each other by hearing and seeing each other;

...

"electronic form", in relation to an electronic will, means a form that (a) is recorded or stored electronically, (b) can be read by a person, and (c) is capable of being reproduced in a visible form;

"electronic presence" ... means the circumstances in which 2 or more persons in different locations communicate simultaneously to an extent that is similar to communication that would occur if all the persons were physically present in the same location;

...

35.2 (1) ... except [for military wills], a requirement that a person take an action in the presence of another person, or while other persons are present at the same time, is satisfied while the persons are in each other's electronic presence.

...

(3) If a will-maker and witnesses are in each other's electronic presence when the will-maker makes a will, the will may be made by signing complete and identical copies of the will in counterpart.

...

35.3 (1) ... [except for military wills], (a) a reference to a signature includes an electronic signature and a reference to a statement being signed includes the statement being signed electronically, and (b) a requirement for the signature of a person is satisfied by an electronic signature.

...

37 (3) The requirement ... that a will be in writing is satisfied if the will is in electronic form[, except for military wills].

Witness Requirements - Age

A witness must be nineteen (19) years of age or older.

Outside of this strict requirement, a will may survive and be saved against a witness who turns out to be or have been incapable of proving its execution.

40 (1) Signing witnesses ... must be 19 years of age or older.

...

(3) A will is not invalid only because a witness was... or afterwards became, legally incapable of proving the will, unless the witness was not 19 years of age or older ... .

Witnessing Exception - Military

The rule that there be witnesses is relaxed in a certain case.

A will by a member of the Canadian, British Commonwealth, or other allied military on active duty does not require witnesses to be valid where it signed by the will-maker themselves, or requires only 1 other person as a witness where a substitute signer is used. This is understandable for practical reasons which policy recognizes.

38 (1) A member of the Canadian Forces while placed on active service under the National Defence Act (Canada), or a member of the naval, land or air force of any member of the British Commonwealth of Nations or any ally of Canada while on active service may... make a ... will in writing, signed by the will-maker at its end or by some other person in the presence of and by the direction of the will-maker.

(2) If the will is signed by the will-maker, there is no need for a witness to be present to witness or to sign the will as a witness.

(3) If the will is signed by another person, the signature of that other person must be witnessed by the signature of at least one person, who must sign the will in the presence of the will-maker and of that other person.

Alterations

Any subsequent alteration made in a will must itself be properly signed to and witnessed underneath it, to the side of it, in the closest margin to it, or otherwise nearby it, or concluding a memo referring to it. Alterations are not allowed on electronic wills - a new one must be executed.

54 (1) To make a valid alteration to a will other than an electronic will, the alteration must be made in the same way that a valid will is made under [the rules of execution of a doubly-witnessed will].

(2) ... an alteration to a will is valid if the signature of the will-maker to the alteration, and the witnesses to that signature of the will-maker, are made (a) in the margin or in some other part of the will opposite to or near to the alteration, or (b) at the end of or opposite to a memorandum referring to the alteration and written in some part of the will.

...

54.1 (1) A will-maker seeking to make an alteration to an electronic will must make a new will ... .

Foreign

British Columbia will liberally accept as valid a will from outside of British Columbia or by someone from outside of British Columbia if the will satisfies the requirements of the place where it or the will-maker is from.

80 (1) A will is valid ... if it is made in accordance

(a) with the law of the place where the will is made,

(b) with the law of the will-maker's domicile...,

(c) with the law of the will-maker's ordinary residence...,

(d) with the law of a country of which the will-maker was a citizen...

Constructive Validity

A will, will-like document, or alteration in a will that was not made or executed properly but is otherwise genuine may be retroactively deemed as valid, but only upon a lengthy, costly, improbable application to Court.

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

(3) Even though the making... [or] alteration ... of a will does not comply with [the rules of execution], the court may... 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[n] ... alteration ... of a will of the deceased person, or (c) as the testamentary intention of the deceased person.

Witness & Substitute Signer Requirements - Conflicts of Interest

Prohibitions

On an otherwise valid will, a witness, substitute signer, or the spouse or partner of either of them should not be a beneficiary under the will receiving a gift. If they are then their gift is void.

43 (1) ... a gift in a will is void if it is to

(a) a witness to the will-maker's signature or to the spouse[ or partner] of that witness,

(b) a person signing the will by the will-maker's direction, or the spouse[ or partner] of the person signing, or

(c) a person claiming under a person, other than the will-maker, referred to in paragraph (a) or (b).

...

(3) If a gift is void under subsection (1), the remainder of the will is not affected.

Rationale

The rule that a witness, a substitute signer, or their spouse or partner should not be a beneficiary does not invalidate a will fully upon not being properly observed but does invalidate it partially as to the improper individual's gift, which might as well be just as bad and may ruin a will-maker's intended plan for their assets.

The rule is a directed safeguard against the scenarios of malicious actors i) outright forging a person's signature, or without direction applying a substitute signature, on a will falsely claimed to be signed or acknowledged in front of them that has them as beneficiaries or ii) otherwise coercing or unduly influencing a person into signing, or directing substitute signing of, a will in front of them that has them as beneficiaries. The rule's consequence necessitates using as witnesses and substitute signers independent persons who have no personal stake or role in the will and thus no incentive to fabricate or force its signing, presumptively ensuring the signing's veracity and independence.

Remedy

A will that by mere mistake and with no undue influence had a witness, a substitute signer, or their spouse or partner as a beneficiary and thus had their gift voided may have such gift retroactively "cured" as valid, but only upon a lengthy, costly, uncertain application to Court.

43 (4) On application, the court may declare that a gift to a person referred to in subsection (1) is not void and is to take effect, if the court is satisfied that the will-maker intended to make the gift to the person even though the person or the person's spouse[ or partner] was a witness to the will.

Extended Summary

A will shall be valid in British Columbia where:

• If the will was made outside of British Columbia or by someone from outside of British Columbia, it satisfies the requirements of the place where it was made or the will-maker was domiciled, resident, or a citizen of.
• If not, in the general case, the will is
  • drafted in writing, either physically or electronically;
  • made by a will-maker who at the time is sixteen (16) years of age or older and has the mental capacity to do so;
  • signed, either physically or electronically, at the end by the will-maker or a substitute signer in their presence and at their direction;
  • in the simultaneous presence of two (2) or more witnesses who are nineteen (19) years of age or older either in-person or over live videoconferencing, so signed, or acknowledged by the will-maker as having been signed; and,
  • signed, either physically or electronically, by two (2) or more of the said witnesses in the presence of the will-maker, with, if over live videoconferencing, counterparts being allowed.
• If not, in an alternate case for certain military members, the will is
  • drafted in writing, physically;
  • made by a will-maker who at the time is a member of the Canadian, British Commonwealth, or other allied military on active duty, and has the mental capacity to do so;
  • signed at the end by the will-maker or a substitute signer in their presence and at their direction; and,
  • if the will-maker used a substitute signer,
    • in the presence of one (1) or more witnesses who are nineteen (19) years of age or older, in-person, so signed, or acknowledged by the will-maker as having been signed, and,
    • signed by one (1) or more of the said witnesses in the presence of the will-maker and the substitute signer.
• If not properly meeting any set of formal requirements, the will is accepted as genuine by the Court upon application.

A subsequent alteration in a will shall be valid as per the above except that where there is a requirement of execution there be one made nearby it or concluding a memo referring to it.

A beneficiary under an otherwise valid will should not be a witness, the substitute signer, or the spouse or partner of either of them. If they are then their gift is void against them or anyone claiming under them unless they and their spouse or partner are accepted as not having exercised undue influence upon the will-maker by the Court upon application.

Streamlining

This deep dive has shown the full web of the rules, replete with exceptions, alternatives, and remedies to an underlying conventional standard of will execution.

These exceptions and the like are obscure. They are interesting tidbits of information to know - but for academic purposes.

• At Your Final Will we recommend young people to prepare a will, though that does not extend to recommending a child be mindful of it and contemplate reliance on the antiquated category of child solider.
• While the alternative of substitute signing is available at law it is not something that we make provision for for the iota it might apply to. Wills are signed by their makers per the normal course.
• Electronic execution was made a possibility under the social distancing mandates of COVID, and that is all that it should remain an artifact of; signing your will, your single testament, should be done by having your witnesses over to be with you, in pen and in-person, in the canonical way it's always been done and that was not a hassle except during a strange and brief period (2020-2021) and that has no worthwhile reason to experiment and deviate from.
• While the law provides for valid alterations, they should never be made. There is no shortage of cases of shoddy, hasty, or improper alterations being held invalid and of no effect, often even invalidating the will beyond the alteration itself. It is never worth it. This also applies to a handwritten addition made to a printed will before it is executed; unlike with the printed body, it later may not be certain whether the addition was present at the original execution or was made afterwards improperly, without its own execution. Therefore, overall, one should never make handwritten changes to a will. All intentions should be printed in, and where intentions need an update, one should make a new will through a provider of their choice.
• Curative court applications exist for defective executions but with straightforward instructions both clearly given and understood, they will never be.

Your Final Will does not deal in these exceptions and provides the conventional or standard form of will - machine-generated, British-Columbia-local, self-signed, doubly-witnessed, in-person, fully-compliant.

Essential Summary

With those obscurities and fallbacks excluded, we are left with the following distillation:

1. A will made outside of British Columbia or by someone from outside of British Columbia shall be valid if it satisfies the requirements of the place where it or the will-maker is from. Otherwise, a will made in British Columbia shall be fully valid if it is
   1. singularly computer-printed, with no subsequent additions or alterations any time in handwriting or otherwise;
   2. signed at the end by the will-maker, who is then sixteen (16) years of age or older and has mental capacity, in the simultaneous presence of two (2) witnesses who are nineteen (19) years of age or older; and,
   3. signed by the said witnesses in the presence of the will-maker.
2. A witness or a witness' spouse or partner should not be someone who is a beneficiary under the will. If they are then their gift is void.

Bottom Line

Here is the summary translated into actionable steps to having a valid will:

1. Obtain a will with us at Your Final Will by clicking Start for Free. The purchased package contains a set of instruction manuals that set out how to sign in the manner that follows.
2. Think of two adult (2) witnesses. They should not be anybody whom you've included in your will, and their spouse or partner should not be anybody whom you've included in your will. Good candidates would be someone like a friend, or a neighbour, or a co-worker.
3. Contact them and arrange a date and time for them to come to you in-person to witness your will.
4. On that date, print your will from your computer and have it ready. Do not make any additions or changes to it.
5. Invite your witnesses in. Give everyone a blue pen.
6. Turn to the last page of the will.
7. Print the information in the "city or town", "province or territory", "month", "date", and "year" fields.
8. In front of both of your witnesses, with them watching you do it, sign in the signature field that has your name.
9. Pass the will over to your witnesses.
10. In front of you, on the same last page, watch each of them sign in a witness signature field and print their personal information in the "Name", "Address", and "Occupation" fields that are under their signature.
11. On all pages before the last, initial in the space for your initials in the bottom right corner, and have your witnesses initial in the spaces for them. Such initialing on every page before the last is not legally required but is a universal standard.

To see more from our instruction manuals click here.