Wills and Estates Planning
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A will is the document that tells the people you leave behind who should receive your property and who should manage your estate. In British Columbia, wills are governed by the Wills, Estates and Succession Act (WESA). If your will does not meet WESA’s rules, or if you have no will at all, the law, not you, may decide who inherits.
This article explains in plain language who can make a will in BC, the signing and witnessing rules, electronic wills and remote witnessing, what the court can do when a will is not signed properly, how a spouse or child can challenge a will through a wills variation claim, and what happens if someone dies without a will. It is general legal information, not legal advice.
In this article
A will lets you choose who receives your property when you die, name an executor to manage your estate, and, if you have minor children, name a person you would like to look after them. Without a valid will, your estate is distributed under the intestacy rules in Part 3 of WESA, which may not match your wishes.
A will is only one part of an estate plan. Many people also prepare an enduring power of attorney for financial matters and a representation agreement for health and personal care decisions. Those documents work while you are alive; a will only takes effect on death.
Under section 36 of WESA, a person who is 16 years of age or older and who is mentally capable of doing so may make a will. A will made by a person under 16 is not valid.
Mental capacity is assessed when the will is made. In general terms, the will-maker must understand that they are making a will, have a general sense of what they own, know who would normally be expected to benefit, and understand the effect of the will. In Vout v. Hay, [1995] 2 SCR 876, the Supreme Court of Canada explained that the person relying on a will must prove that it was properly signed and that the will-maker knew and approved of its contents and had capacity, and that “suspicious circumstances” around the preparation of the will can require stronger proof.
Section 37(1) of WESA says that, to be valid, a will must be:
Under section 40, signing witnesses must be 19 years of age or older. A person may witness a will even if they receive a gift under it, but section 43 makes a gift to a witness, or to the witness’s spouse, void unless the court declares that the will-maker really intended the gift. For this reason, it is safest to use witnesses who receive nothing under the will.
BC does not have a separate category of handwritten (holograph) wills that are valid without witnesses. A handwritten document that is not properly witnessed can only take effect if the court makes an order under section 58, discussed below. Section 38 contains a special rule for members of the armed forces on active service.
WESA now allows electronic wills. Section 37(3) says the requirement that a will be “in writing” is satisfied if the will is in electronic form, and section 37(4) says an electronic will is a will for all purposes. Section 35.3 allows electronic signatures for the purposes of signing and witnessing.
Section 35.2 allows the will-maker and the witnesses to be in each other’s “electronic presence”, meaning they communicate at the same time using audiovisual technology in a way similar to being in the same room (section 35.1). Some people can be physically present and others electronically present, and the will can be signed in identical counterpart copies.
Electronic wills have their own revocation rules in section 55.1, for example deleting electronic versions with the intention of revoking the will. Because the technology and record-keeping matter, many people still choose a paper will signed in person, but the electronic option is legally available.
Section 58 gives the Supreme Court of British Columbia power to “cure” deficiencies. On application, if the court determines that a record, document or writing represents the deceased person’s testamentary intentions, it may order that the record is fully effective as a will even though it does not comply with WESA’s formal requirements. A “record” includes data stored electronically that can be read and reproduced in a visible form.
Courts ask whether the document is authentic and whether it records the deceased’s deliberate, or fixed and final, intentions about what should happen to their property on death, rather than notes or a draft. In Hubschi Estate (Re), 2019 BCSC 2040, the court gave effect to a document saved on the deceased’s computer on the particular facts of that case. In Estate of Young, 2015 BCSC 182, the court gave effect to a signed document but refused a later unsigned document that did not show a final testamentary intention. Each case turns on its own evidence, and an application under section 58 takes time and cost that a properly signed will avoids.
Under section 55, a paper will is revoked only by another valid will, by a written declaration made with the same formalities, or by the will-maker (or someone in their presence and at their direction) burning, tearing or destroying it with the intention of revoking it. Section 54 deals with alterations; changes made after signing generally need to be signed and witnessed in the same way.
Under WESA, getting married does not revoke a will. However, under section 56, if spouses later separate so that they cease to be spouses under section 2, a gift to the former spouse and their appointment as executor are revoked, unless the will shows a contrary intention. Under section 2, spouses include married persons and persons who lived together in a marriage-like relationship for at least two years. Because life events change what your will does, it is wise to review it after marriage, separation, a new child, or a move.
Section 60 of WESA allows the court to vary a will if it does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the will-maker’s spouse or children. The court may order the provision it thinks adequate, just and equitable in the circumstances. Children include adult children.
In Tataryn v. Tataryn Estate, [1994] 2 SCR 807, the Supreme Court of Canada held that the court considers both the will-maker’s legal obligations (what the law would require during their lifetime) and their moral obligations, judged by contemporary community standards, while still giving weight to the will-maker’s freedom to decide.
The deadline is strict. Under section 61, a wills variation proceeding must be started within 180 days from the date the representation grant (probate) is issued in BC, and the claim must be served on the executor no later than 30 days after that period, unless the court extends the time for service. If you think you have a claim, or you are an executor facing one, get advice early. See our page on wills variation claims.
If someone dies without a will (intestate), Part 3 of WESA decides who inherits:
Under section 22, if there are two or more spouses, they share the spousal share as they agree or as the court decides. Section 26 also gives a surviving spouse certain rights in relation to the spousal home. Someone must still apply to the court to administer the estate, which is often slower without a named executor. Our estate administration page explains that process.
Depending on your situation, you may wish to prepare a new will or update an existing one, add an enduring power of attorney and a representation agreement, review beneficiary designations, or plan for property in other provinces or countries. If a family member has died, options may include applying for probate or administration, bringing or defending a wills variation claim, or asking the court to cure a defective will under section 58. Our wills page and estate planning page describe the services Pax Law Corporation offers.
It is wise to speak with a lawyer if you have a blended family, children from a prior relationship, a business, property outside BC, a beneficiary with a disability, or if you expect someone may be unhappy with your will. Advice is also important if you are an executor, if you are considering a wills variation claim (the 180-day limit is strict), or if a document may need to be validated under section 58. A lawyer can also confirm that your will is signed and witnessed correctly, including when witnessing is done electronically.
Sixteen or older, and you must be mentally capable of making a will (WESA section 36). A will made by someone under 16 is not valid.
At least two. They must be present at the same time when you sign or acknowledge your signature, and they must sign in your presence (WESA section 37). Each signing witness must be 19 or older (section 40).
A beneficiary can act as a witness, but the gift to that witness or to the witness’s spouse is void unless the court declares otherwise (WESA section 43). It is safer to use witnesses who receive nothing.
Yes. A will in electronic form can satisfy the writing requirement, and the will-maker and witnesses may be in each other’s electronic presence (WESA sections 35.1 to 35.3 and 37).
Not on its own unless it is signed and witnessed like any other will. A handwritten document that does not meet the formal rules can only take effect if the court orders it under WESA section 58.
Under WESA section 58, the court may order that a record, document or writing is fully effective as a will if it represents the deceased’s testamentary intentions. In Hubschi Estate (Re), 2019 BCSC 2040, a document saved on the deceased’s computer was given effect on its facts.
No. Under WESA, marriage does not revoke a will. If you separate and cease to be spouses, gifts to and appointments of the former spouse are revoked under section 56, unless the will says otherwise.
The will-maker’s spouse or children, including adult children, under WESA section 60, if the will does not make adequate provision for their proper maintenance and support.
The proceeding must be started within 180 days from the date the representation grant is issued in BC, and served on the executor within 30 days after that period unless the court extends the time for service (WESA section 61).
Your spouse receives the household furnishings and a preferential share of $300,000, or $150,000 if not all the children are also your spouse’s, and the rest is divided half to your spouse and half to your descendants (WESA section 21).
Your estate goes to your descendants, then to your parents, then to other relatives in the order set out in WESA section 23. If no relative qualifies, it passes to the provincial government.
It is a notice you may file with the Vital Statistics Agency under WESA section 73 to record where your will is kept. It does not register the contents of the will, it is optional, and it does not affect the will’s validity.
If you would like to make or update a will in British Columbia, or you have questions about an estate, a lawyer at Pax Law Corporation can help.
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Disclaimer: This article is general legal information only, not legal advice. It reflects the Wills, Estates and Succession Act and the court decisions cited as of the date of publication. Laws change and every case is different, so speak with a lawyer about your own circumstances.
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