Most of us don’t really think about making a will. At least when we are still young and healthy, we don’t. The idea of dying someday can be frightening, and for some people, the concept of death just seems too surreal. Sometimes, we are just too busy to even think about it. However, dying without having a valid will can have some serious consequences. There may be unnecessary probate fees and legal fees involved just to have your estate cleared up. See our article on Intestacy to learn more about the consequences.
What is a Will?
Most people think of a will as a document that contains instructions on how one’s assets get distributed after the will-maker’s death. Some people refer to it as “the Last Will and Testament”. Nowadays, most people just call it the “last will”, or a “will”.
More precisely, a will is a legal document with instructions to be carried out after a person’s death. It usually contains instructions on how one’s assets get distributed. It may also appoint a guardian of the will-maker’s children. The main purpose of a will is to make sure the deceased’s wishes are expressed as clearly as possible. Think of a will as the voice of the deceased. British Columbia’s Wills, Estates and Succession Act defines any of the following documents as a “Will”:
If a Judge Can Order a Document to Be a Will, Is It Still Important to Make a Valid Will?
According to WESA, records that do not qualify as a valid will (e.g. A will that hasn’t been signed at the end, or a holograph will) can be ordered by a judge to be effective as a will. However, to do so, someone has to apply for a court order with evidence and good reasons why the records should count as a will. If you don’t have a valid will at the time of your death, the chances of your note hidden in your diary being ordered by the court to be effective as your will could be fairly low. If the court rejects the application, you will be considered to have died intestate and the legal fees will have gone to waste.
When making a will, it is important to meet all the requirements to make sure your will is a valid one.
Requirements to Make a Valid Will
◊ Who Can Make a Valid Will?
In British Columbia, you must be 16 years or older to make a will.
You must also have testamentary capacity. It means that you are capable of making a will. You must understand the nature of a will and what it can do. You must have a clear understanding of the extent of the property you are disposing of in your will, and the people who you would normally be leaving your property to. You cannot be suffering from delusions that affect how you dispose of your property in your will. Lastly, you must sign the will of your own free will.
◊ What Makes a Will Valid?
Let’s assume that we have someone who wishes to make a will. Our will-maker, Julie, is 20 years old and has the right mental capacity to make a will. She is not forced by someone to make a will, which means that there is no sign of undue influence. Julie meets all the requirements as a will-maker to make a valid will. Now, her will must meet some requirements to be valid:
- A will must be in writing. It should not be in the form of video or voice recording.
- A will must be 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 two or more witnesses present at the same time.
- A will must be signed by two or more of the witnesses in the presence of the will-maker. Witnesses of a will must be 19 years or older and should not be beneficiaries of the will.
- A “holograph will”, which is a will handwritten by the will-maker and without witness signatures, is not valid in B.C. with some exceptions. Unless an exception applies, you will need a special court order declaring that the holograph will is effective as a valid will (as described above).
If your will does not meet all the requirements, then your will becomes invalid. When someone dies with an invalid will, that person is considered to have died intestate, and their estate will be distributed according to the intestate rules of WESA rather than their wishes expressed in their will. In a best case scenario, the executor might get a judge to order that the invalid will is as effective as a valid will, but to get that kind of court order, there will need to be a court action, parties will have a chance to dispute the will, and the estate will be put to considerable expense.
If you are worried about ensuring that your will is valid, consider getting help from a lawyer experienced with wills and estates.Making a will shouldn’t be intimidating. We can walk you through the process.
Brennan J. Clarkson has helped clients with family law and estate law cases since 2008. He practices in Port Moody, British Columbia at Clarkson Law Corporation.
Contact Clarkson Law Corporation today for a free 30 minute consultation.