Vancouver Lawyers What Makes A Will – Part 1
It is an understatement to say that Wills are very important legal documents with significant ramifications. Wills give a legal voice to the wishes of the Deceased and are arguably the most important document with respect to estate planning and transfer of wealth. In many Estate litigation cases, much of the case turns on the validity of the will.
The Wills, Estates and Succession Act sets out specific requirements in s. 37 as to how to make a valid will. There are other sections of WESA that deal with the validity of wills in specific circumstances, however the S. 37 requirements govern the vast majority of wills. S. 37states:
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 his or hers, 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.
(2) A will that does not comply with subsection (1) is invalid unless
(a) the court orders it to be effective as a will under section 58 [court order curing deficiencies],
(b) it is a will recognized as valid under section 80 [validity of wills made in accordance with other laws], or
(c) it is valid under another provision of this Act.
One critical aspect of s. 37 is that it refers to s. 58 which allows the Court, on application by a party, to apply to “cure a deficiency” in a will and essentially make a will which does not fully qualify under s. 37 valid. This issue was recently considered by the Honourable Mr. Justice N. Brown in the decision, Litke Estate (Re), 2017 BCSC 1079 where the applicant sought an order from the Court confirming the validity of a “will-like” document. We will review the decision of the Court in part 2 of this Blog series.