Under the Wills Act, a Will was only valid if it was
- in writing;
- at its end is signed by the will-maker or by some other person in his presence and by his direction;
- the will-maker makes or acknowledges the signature in the presence of 2 or more witnesses present at the same time; and
- 2 or more of these witnesses in the presence of the testator.
A Will which did not meet the above-mentioned criteria was invalid and the courts of British Columbia had no power to declare such testamentary documents enforceable. In other words, British Columbia was a “strict compliance” jurisdiction when it came to the issue of determining a Will’s validity and sometimes, a will-maker’s intention were defeated on mere technicalities and not on an analysis of what the will-maker actually wanted to happen with his estate upon death.
However, in 2013, the Wills Act was replaced by the Wills Estate Succession Act (“WESA”) that gave the courts of British Columbia the power to rectify a Will that didn’t meet the criteria of being in writing, signed by the will-maker in the presence of two witnesses. Indeed, S.58 of WESA, which empowers courts to declare un-signed or un-witnessed Wills to be valid, does not impose a minimum level of execution or other formality before a court can declare a Will to be valid.
In broad terms, the applicable test under s.58 of WESA has two main parts:
- Whether the record, document, or writing is “authentic”; and
- Whether the record, document or writing represents the deliberate or fixed and final intention of the deceased person.
Whether a court will declare a document left by a loved one a valid Will even though it does not meet the usual requirements of being signed or witnessed is intensely fact specific and it is critical to seek legal advice quickly.
If you find such a testamentary document in your loved one’s belongings after death consult Vancouver/Burnaby wills & estates lawyer Andrew Rebane at Resolutions Law Corporation, [email protected] or 778-372-7107
