What makes a will valid?

Nov. 8, 2013

Neil Wyper

What is a will?

A will is a written document that describes your wishes after you die. It can be handwritten or typed, and it only takes effect when you die.

In BC, it is critical that the will-maker must sign their will in the presence of two witnesses, and each of the witnesses must also sign the will in the presence of the will-maker and the other witness. Neither witness may be a beneficiary or the spouse of a beneficiary in the will, so spouses must not witness the signing of their partner’s will.

Other provinces allow “holograph” wills, which do not have the same requirements for witnesses. These wills are not effective in British Columbia.

How can a will be revoked?

A will can be revoked at any time, either intentionally or as a side-effect of another event. For example, a will-maker may revoke a will be destroying it. Or, if a will-maker gets married, the will-maker’s will is automatically revoked.

How can a will be changed?

A will-maker can change a will at any time be creating a codicil, which is a new document that alters an existing will. However, it is usually easier to simply create a new will that is fully up-to-date. The requirements for signing a codicil are the same as for a will (ie two witnesses present at the same time), and it’s usually straightforward to modify and print a whole new will.

Who can make a will?

Any adult may make a will, as well as certain classes of persons under 19.

In general, every parent should have a will, to describe the future care of their children. Also, anyone with significant assets, such as a house, should also have a will.

Are will kits valid?

Many documents can be used as a will, so long as they meet certain formalities, including the signing requirements mentioned above. As long as the document you create using a will kit satisfies the legal requirements, then your will is valid and binding.

A will kit may be helpful for identifying the kinds of topics you might want to cover in your will. A will kit can also suggest common language for expressing your wishes.

However, there are some things that a will kit cannot do. A will kit cannot verify that the will you create deals with all of your property, or that your will avoids ambiguity. Any property that is not dealt with in your will is distributed according to legislated rules as if you had no will at all. Ambiguity in wills is a common source of difficulty for executors, and is a common cause of litigation.

While a will kit may save you money now, a will created without the assistance of a professional may not fully express your wishes in an unambiguous amd legally enforceable manner.

Why pay a lawyer to draft a will?

The laws which govern the drafting and interpretation of wills is very complex. It is a very old area of law, with principles originating in middle ageas and even earlier, and many of the rules are not intuitive. Provincial legislation gives some certainty to situations where a will is not valid, but it would be very rare that the legislated rules lead to the results that a will-maker wished for.

By hiring a lawyer, their knowledge and experience will be applied to avoid errors and ambiguities in your will. The cost of having a lawyer draft your will today is certainly less than the cost would be for litigation over your will. The expense of hiring a lawyer should be thought of much like life insurance: an investment today, which helps your family when you are no longer around.

Overall, hiring a lawyer to draft your will ensures that the document is prepared correctly, expresses your wishes, and hopefully saves your family from stress and added expense after your death.

This article is provided for information only and does not constitute legal advice. If you would like legal advice, please contact Wyper Law.