Myth busting requirements for will validity
- Debunking myths about legal requirements of a valid will
Back to basics this week with what it takes for a British Columbia will to be valid.
Misinformation is abundant!
A financial advisor recently told a client that their will was invalid because:
- It lacked initials on every page, and
- There was no blue document corner (a blue paper triangle that fits over the top left corner of a will and is then stapled).
Neither are, nor ever have been, required for will validity.
A more typical myth is about witnessing a will.
I’ve seen many requests on social media for someone to “notarize” a will, as if having a lawyer or notary involved is required.
Not so.
A valid will made in British Columbia must be witnessed, but the witnesses needn’t be anyone special as long as they’re at least 19 years of age.
But note that neither a beneficiary, nor their spouse, should be a witness because section 43 of the Wills, Estates and Succession Act voids the gift to that beneficiary. A judge can revive the gift if satisfied that the will-maker intended to give it, but it’s best to avoid that extra hassle and uncertainty.
There is a validity requirement about the mechanics of how a will is witnessed, but it’s easy.
The will-maker must sign the end of the will in the presence of two witnesses and then the witnesses must sign in the presence of the will-maker.
It’s helpful, though not legally required, for the section where the witnesses sign to contain words that confirm this method of signing and the age of the witnesses. For example: “We were both present at the request of Jack Spratt and we were both 19 years of age or older when they signed this Will. We then signed as witnesses in the presence of Jack Spratt and in the presence of each other.”
I say “helpful” because when doing the estate administration (probate) end of things, the court is likely to request an affidavit to confirm that the will was witnessed correctly if those words aren’t there.
Also helpful to include the printed names and addresses of the witnesses in the extremely unlikely event that they’re needed to confirm what occurred.
As for the contents of the will, there’s no need for any special legal words for it to be valid.
One home-made will I dealt with consisted of the following (I’ve changed the names, of course): “I Jack Spratt being of sound mind give all my belongings to Jane Doe”.
That one-liner hand-written will wasn’t valid because it wasn’t witnessed. There was only one witness signature on the will (not the required two) and it turned out that the one “witness” wasn’t even present when the will-maker signed it!
The text of the will was perfectly valid, though.
The words “being of sound mind” are not required, by the way.
Probate was granted for that one-liner will after I successfully applied to “cure” it of its witness deficiencies. A court can validate an invalid will if the judge is satisfied that the document represents the will-maker’s intentions of what they want to happen to their property on their death.
Don’t leave it up to the extra work and uncertainty of a court application, though. Ensure your will is properly signed and witnessed!
I am not, by the way, intending to encourage folks to save a bunch of legal dollars by making a do-it-yourself will.
Estate planning advice from a lawyer can be even more important than the will itself.
And your goal, I suggest, is having a will (or other estate planning documents) that will accomplish what you want to accomplish on your death. Following these guidelines, you might get full marks for a technically valid will, but it might not meet that goal.
This information should be reserved for an urgent end-of-life situation where you or someone else needs a will with no time for legal advice.
I’ll throw in that estate tax advice might be the most important advice of all.
If you would like my recommendations for estate planning lawyers (I no longer offer those services) and estate tax accountants let me know.
