Do you have to rewrite your will if you move to B.C.?

Topics covered:

  • A will validly made in Alberta, including a holograph will, is valid in British Columbia
  • Example of why It is prudent to review your valid out-of-province will with a British Columbia lawyer to ensure it continues to operate as you would want it to in B.C.’s legal framework
  • An Alberta made Power of Attorney is not valid in British Columbia unless there is a certificate from an Alberta qualified lawyer certifying that it was validly made in Alberta

Do you have to redo your will if you move?

A former Albertan who I’ll refer to as Beth, was recently advised by a Kelowna law firm that (quoting from the law firm’s e-mail that she forwarded to me): “a Will prepared in Alberta is not valid in BC”.

I reassured Beth that a will validly made in Alberta is perfectly valid in BC.

But I’m a sole practitioner in a small firm. A much larger firm had advised her, in writing, that it wasn’t.

Beth was anxious. One law firm said one thing and little old me said the exact opposite.

I reached out to a partner at the firm asking that they please send Beth an e-mail retracting their incorrect advice.

The reply I got was interesting.

The reply: “I confirm that a Will made in Alberta is not invalid in BC merely because it was made in Alberta, and if it is valid and properly executed in Alberta, with two witnesses, then it would be valid in BC”.

I responded noting that it wasn’t me who needed convincing! I repeated my request that their retraction go directly to Beth.

I also noted in my response that Alberta law allows for holographic wills. A holograph will is one where the will-maker writes out their will by hand and then signs it. No witnesses are required.

The partner replied with the incorrect legal statement that a holograph will would be valid after court application to cure it.

Not so.

British Columbia’s Wills, Estates and Succession Act, section 80(a) very clearly states: “A will is valid as to the formal requirements for making the will and is admissible to probate if it is made in accordance with the law of the place where the will is made”.

There are provisions that allow for a court application to “cure” an invalid will. But there’s no need to do that in the case of a valid will, A holographic validly made in Alberta is a valid will in British Columbia.

A “cure” would be required for a holographic will made in British Columbia. The court will “cure” or validate such a will if the court is satisfied that it that the document represents the fixed and final intentions of the will-maker as to the disposal of their property on death.

I became very familiar with that aspect of the law because I’ve had to make such an application to cure a handwritten will made by a British Columbian who had only one witness.

My request was followed, a retraction e-mail was indeed sent directly to Beth. And Beth has avoided the expensive exercise of unnecessarily redoing her perfectly valid will.

I believe in the “tip of the iceberg” theory.

Any former employee of Hergott Law knows what I’m talking about. If I stumbled on an error, I knew it was more likely the tip of an iceberg than a one-off. I always dug in to identify how it occurred so that systems could be implemented to avoid it happening again.

The advice given by the legal assistant of that firm was an error.

And then there’s the partner’s misunderstanding of the validity of a holographic will made in Alberta.

I wonder how big the iceberg is. How many former Albertans have been advised that their Alberta wills are not valid in BC?

How many dollars have been spent unnecessarily making new wills?

I do recommend that an immigrant to British Columbia consult with a lawyer about their estate planning documents, including their will.

Different provinces and countries can have significantly different legal systems and laws. While the will itself might be valid, it could be important to make a new will or take other estate planning steps to ensure your wishes will be best followed under British Columbia law.

An example is B.C. law that gives a spouse or child the right to challenge a will on the basis that it doesn’t adequately provide for them. If you move here from another jurisdiction that doesn’t have those rights thinking that you could disinherit your children with impunity, you will want to be advised about how best to avoid such a challenge.

And an Alberta made Power of Attorney is not automatically valid in B.C. It must be accompanied by a certificate provided by an Alberta qualified lawyer certifying that it was validly made in Alberta.

Then there’s what seems to be the rather unique British Columbian animal of a Representation Agreement that I’ve written about in a previous column.

So yes, please consult with a B.C. lawyer about your estate planning documents if you have moved here from another jurisdiction. But if you’re told that your existing will is automatically invalidated by your move, find another lawyer!

To help me determine the size of the iceberg, would you mind please reaching out to me if you were advised that your Alberta will was invalid in B.C.?

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