League and Williams Lawyers

Tag: Invalid Will

Curing an Invalid Will: Acceptable Evidence
A will is invalid in BC if it isn’t compliant with the formal requirements of the Wills, Estates and Succession Act (WESA). In British Columbia, courts have the power to “cure” an invalid will which still represents the intentions of a testator. But how do the courts discern the true intentions of a testator with an invalid will? In this article, we’ll go over the principles surrounding extrinsic evidence interested parties can submit to support the court in curing an invalid will.

Requirements Under WESA

Under WESA, for a will to be valid in BC it must satisfy three requirements:
1. The will must be in writing;
2. The will must be signed at the end, and;
3. The will must be properly witnessed.
According to WESA, the will-writer must sign the end of the will while in the presence of two or more witnesses in order to create a valid will. Basically, you must have two people witness you sign the last page of your will. Importantly, witnesses can’t be beneficiaries of the will, or the spouse of the will-writer. Further, the will must be in writing. A video or voice recording is not a valid legal will under WESA.

Curing Invalid Wills

According to s. 58 of the Wills, Estates and Succession Act (WESA), the courts have the ability to make a curative provision to an invalid will. Essentially, this means that if a will does not satisfy the above requirements, the courts can “fix” the deficiencies of the will and validate it. If a judge is satisfied that the owner wrote the will and it truly represents the owner’s intentions at the time of their death, they can cure the invalid will.

The court uses medical records as evidence to understand the mental state of the will writer when they prepared a testamentary document.

Evidence Used by the Courts to Discern a Will Writer’s Intention

In the case of Hadley Estate (Re), 2017 BCCA 31, the judge discussed the difficulty of discerning if a non-compliant document expresses the testamentary intentions of its writer. This is because, obviously, the person most able to express those intentions has already passed away. Invalid wills, drafted without a lawyer’s help, are more likely to be unclear in their use of legal language. Because of these challenges, interested parties are able to submit extrinsic evidence to aid the courts. Extrinsic evidence can be almost any material which relates to or demonstrates the will writer’s testamentary intentions.

Examples of Evidence

In curing a will, the court aims to ensure that, even though the document is invalid due to WESA non-compliance, it still expresses the fixed and final testamentary wishes of its writer. To demonstrate that the will should or should not be cured, evidence that could be submitted includes:
- Personal Letters or Emails: These can provide insight into the will writer’s relationships and their intentions for their estate. For example, a family member receives a letter discussing the writer’s wishes for them to receive specific assets.
- Audio or Video Recordings: Recordings where the will writer discusses their estate plans can be powerful evidence. However, the recency and context of the video recording will determine the value of this evidence.
- Financial Documents: Bank statements or other financial documents can show patterns consistent with the will writer’s stated intentions. For example, regular payments to a charity that the will writer wished to leave a bequest to could confirm a clause making a large donation in an invalid will.
- Witness Testimonies: People who were close to the will writer can testify about conversations they had regarding the will. A friend could testify about the testator’s relationship to their family members and any comments they might have made about their testamentary wishes.
- Medical Records: These can help establish the will writer’s mental capacity at the time the will was made. This could include a doctor’s report stating that the will writer was of sound mind when discussing their estate plans.
- Diaries or Journals: Personal writings can reveal the will writer’s thoughts and intentions about their estate. For instance, a journal entry where the will writer discusses their reasons for wanting to disinherit a particular family member.
Examples of Evidence from Case Law

An Unsigned Handwritten Note

There are numerous examples in BC case law which demonstrate admissible extrinsic evidence to support the courts in curing a will. In the recent case of the Skopyk Estate (2017), a will writer told his family that his will from 1995 didn’t express his current wishes, and that he was working on a new one. He passed shortly after, but family found an unsigned handwritten document in his apartment after his death. Even though the document was unsigned, the court cured the document based on the following extrinsic evidence:
- The document was placed somewhere it could be easily found after the death of the will writer;
- The estate distribution set out in the document was rational based on it’s exclusion of a beneficiary of the 1995 will who had since died;
- The document referenced the 1995 will, and even clarified a typo from that old will;
- The deceased had told family numerous times that he was trying to update his 1995 will before passing; and
- The distribution in the document matched the wishes he had communicated to his family while in the hospital before someone found the document.
Based on the above evidence, the court found that the note was a deliberate expression of the deceased’s final wishes. The court ordered that the document was a valid alteration to the pre-existing 1995 will.

A Document Labelled “Will” Stored With Valuables

In Dickinson-Starkey Estate (Re) (2022), the deceased’s nephew sought legal assistance in locating his uncle’s valid will. There was no notice of will in force, and no document was found. He gained access to his uncle’s house using a neighbour’s spare key, and found a folder labelled “will” with the deceased’s name and address. The writer had stored the folder with items including antiques, family photos, expensive liquor, crystal and china. The document was lengthy and detailed, and clearly intended to serve as a will. However, the court couldn’t cure it under s. 58 based on the following discrepancies:
- There were a number of handwritten notations and changes on the types document, indicating that it was still a work in progress;
- The deceased did initial some pages, but there was no signature;
- No one was given a copy or told specifically about a new will;
- The deceased spoke frequently about his will, but had not taken any steps to finalise this new document, indicating it is not an expression of fixed and final intentions;
- The deceased indicated he was still preparing his will in November 2017, and the document found in his home was dated July 2017;
- There were clauses in the will which were inconsistent with one another.
On the balance of probabilities, the court couldn’t determine that the deceased intended the document to express his fixed and final intentions. The deceased was likely still considering the contents of the document at the time of his death. Unfortunately, this meant that the estate had to be distributed according to the laws of intestacy, as the deceased had not written another will.

Reminders for Will Writers

Even though beneficiaries may have recourse if WESA finds your DIY will to be invalid, it’s always best to have a valid will in the first place. The process of applying to have a testamentary document cured under s. 58, gathering evidence and presenting it to the court can be time consuming and costly for loved ones. It is always best to seek legal advice when preparing your will, at least to ensure that it is valid under WESA and can be easily probated and executed after your death. If you have questions about the validity of your DIY will, or are ready to start your estate plan from scratch, contact an experienced estate lawyer today.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.
March 14, 2024
Invalid Wills: Suspicious Circumstances and Why They are Important
In BC, interested parties can challenge a will if they believe it is invalid due to suspicious circumstances like undue influence or lack of capacity. The courts presume a will is valid if it meets the following requirements:
- The will must be in writing;
- The will must be signed at the end by the will-maker, and;
- There must be two witnesses to the signing.
The will-writer must have been aware and in approval of the will’s contents, and have had the testamentary capacity to create the will at the time of it’s writing. Testamentary capacity is a person’s legal and cognitive ability to write a valid will. The testator must understand the purpose of a will, decide how to distribute their assets, and be mentally capable of making free decisions. Sometimes, we may be uncertain if the will-writer had the mental capacity to create a will when they wrote it, especially if they were in a state of terminal illness.

What are Suspicious Circumstances?

Suspicious circumstances are important because they threaten the presumption the will is valid. The courts consider suspicious circumstances as situations that raise doubts about the will-writer’s mental capacity, approval of the will’s contents, and their freedom to sign the will without undue influence. Claimants can dispute the validity of a will due to suspicious circumstances, and the courts may invalidate that will. The fact that there were suspicious circumstances during the will-writing process is not enough to successfully challenge a will – the circumstance in question has to have impacted the will-writing process enough to establish that the will does not accurately express the wishes of the will-maker.

The doctrine of suspicious circumstances in BC is meant to ensure that will-makers have acted freely and voluntarily in their will-making process, and to prevent the enforcement of legally invalid wills. When writing a will, the will-maker’s lawyer is responsible for determining whether the will-maker had the mental capacity to distribute their estate in their will. Because of this, in court, there is a presumption of testamentary capacity unless there is evidence to suggest otherwise.

Why Suspicious Circumstances are Important

Suspicious circumstances can pass the burden of proof to the defendant.

The presumption a will is valid can be rebutted by the existence of suspicious circumstances. The burden is initially on the person raising the suspicious circumstances, however, if the challenger can establish that suspicious circumstances interfered with the making of the will on a balance of probabilities – a likelihood greater than 50% – the burden will shift to the person propounding the will (the person asserting it is valid) to prove that the suspicious circumstance do not invalidate the will. This can include proving the will-writer had testamentary capacity, the will-writer knew of and approved of the contents of the will, or that there was no interference through fraud or undue influence during the will-writing process.

In short, the existing presumption of validity is rebutted when suspicious circumstances arise. The defendant, usually the executor of the will, rebuts the suspicious circumstances claim by proving the will’s validity. In some situations, this could mean the executor must prove the will in solemn form, which is a conclusive process in front of the courts which determines if the will is valid or not.

When Circumstances are Ruled Suspicious

As described in the Supreme Court of Canada’s judgment in Vout v. Hay (1995), suspicious circumstances can be raised by:
1. Circumstances surrounding the preparation of the will,
2. Circumstances tending to call into question the capacity of the testator, or
3. Circumstances tending to show that the free will of the testator was overborne by acts of coercion or fraud.
Some scenarios which can provide evidence of suspicious circumstances during the creation of a will include:
- Mental or physical deterioration of the will-writer,
- Sudden changes to a will near the end of the will-writer’s life,
- Sudden changes to a will which appear inconsistent with how the will-writer used to behave,
- Significant involvement from beneficiaries during the will-writing process,
- Gifts given to people who may have influenced the will-writer or to people which do not have a long-standing close relationship with the will-writer,
- Recent husband or wife inheriting a majority of the estate,
- Episodes of depression, anxiety, or drug abuse, and/or;
- Significant dependency on a person who becomes a beneficiary;
- Serious illnesses at the time of the will-writing.
This is a non-exhaustive list of suspicious circumstances that can arise during will-writing. Depending on the situation and the person, circumstances can seem suspicious nearly anywhere. It’s up to the appellant to show that a suspicious circumstance interfered with the will-writing process – making the will invalid. From there, the defendant must prove the validity of the will.

If you were victim to unfair estate distribution and you think suspicious circumstances lead to the creation of an invalid will – contact an experienced estate lawyer today to ensure you receive the estate that you’re entitled to.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.
June 8, 2020
Valid Reasons for Disinheriting a Child
For people who are unfairly disinherited, BC has some of the most sympathetic laws in all of Canada. However, parents can disinherit their children from their will if they have valid and rational reasons. Many provinces allow will-writers to completely disinherit their adult children, giving the will-writer nearly complete testamentary autonomy. However, BC courts regularly vary unfair wills that are guilty of disinheriting children for invalid reasons.

Why BC Courts Modify Unfair Wills

Upon first hearing this, people wonder, why can BC courts modify someone’s will? In BC, the will-writer uses a will as their final opportunity to do right by their family members. If the testator leaves a child without adequate provision, it could leave them requiring financial aid in the future. The will-writer’s disinheritance of their child could burden tax-payers, as the aid probably comes from government services.

Basically, BC courts recognize that each person has a right to do what they want in their will – testamentary autonomy. However, this freedom has to be balanced with the best interests of society as a whole. That’s why BC does not allow disinheritance without valid or rational reasons.

Valid Disinheritance in BC Law

According to the Wills, Estates and Succession Act:

“Despite any law or enactment to the contrary, if a will-maker dies leaving a will that 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, in a proceeding by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the will-maker’s estate for the spouse or children.”

If the will-writer fails to make adequate provision for proper maintenance or support, the courts have the ability to change the will to reflect what they deem to be adequate, just and equitable in the circumstances. This could include large modifications of the main provisions of a will.

What Makes a Reason Valid?

To properly disinherit an adult child or a spouse, the will-writer must have reasons that are:
1. Valid – a true fact;
2. Rational – a logical connection to the disinheritance, and;
3. Consistent with modern Canadian values – not racist, sexist, discriminatory, etc.
A child in BC can be disinherited if the reason is valid, rational and consistent with modern Canadian values.

If the reasons for disinheritance are not valid, rational and consistent with modern Canadian values, the courts can modify the will.

Generally, the most common reason for disinheritance is estrangement. Estrangement is when two people are not on friendly terms and refuse to communicate with one another. If a child is the primary determinant in the estrangement, this is typically a valid and rational reason for a parent to disinherit them. Like all reasons for disinheritance, it’s largely dependent on the individual situation as to whether the reason is rational or not. Courts will deem a reason as rational if a reasonable parent could choose to disinherit for the reason given. Importantly, this is not to be confused with saying a reasonable parent would always choose to disinherit for the reason given.

Examples of Valid Reasons for Disinheritance

The case of Holvenstot v. Holvenstot (2012)is a case where the courts allowed disinheritance. Disinherited by his mother, a son appealed to the BC Supreme Court to alter her will. A number of purported reasons for the disinheritance were addressed by the court, some of the main reasons shown to be true were:
1. The son lied about growing marijuana on his mother’s property which ended in the mother being arrested and convicted for drug possession;
2. The son tried and failed to have the mother declared mentally incompetent by the court;
3. The son kept numerous items of the mother’s, requiring her to bring legal action against him to get them back, and;
4. The son tried to trick the mother into giving him ownership of her land.
The son had to prove the irrationality of these reasons, given the determination that the above facts were true. Ultimately, the judge ruled the reasons as rational due to their logical connection to the disinheritance. The courts ruled that a reasonable parent could make the decision to disinherit their child in the above circumstances. Additionally, none of these reasons for disinheritance violated modern Canadian values.

How to Properly Disinherit a Child

As a parent who wants to disinherit a child from their will, you should prepare a document detailing exactly your reasons for the disinheritance. Providing specific details and examples will help the courts understand the reasons for disinheriting the child. The courts are unlikely to overrule a disinheritance if you present a reason that is valid, rational, and aligns with Canadian values.

If you’re concerned about disinheritance in your estate planning – contact an experienced estate lawyer today.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.
April 21, 2020
Fixing a Broken Will – What can the court do?
Hello and welcome to this week’s blog on the law. In past video blogs, we’ve talked about reasons why people challenge wills. Undue influence and unfairness are two common reasons. A third reason is that the will does not meet the formal drafting requirements for a valid will – that is the will itself is “broken” because it does not meet the three basic requirements in order to be valid. This blog will discuss what the basic requirements for a will in British Columbia are and what the court can do to fix a broken will.

What are the 3 basic requirements for a valid will in British Columbia?

There are 3 requirements for a valid will in British Columbia, these are:
1. First, the will must be in writing;
2. Second, the will must be signed at the end, and;
3. Third, it must be properly witnessed.
Prior to fairly recent changes to BC law in 2014, if a will was missing one of these key elements, for example, if it was not witnessed, the courts would invalidate the will. While the courts could invalidate a broken will, they were not, prior to 2014, able to fix a broken will.

If a British Columbia will fails to meet the basic requirements, can the courts fix it?

In 2014, the legal framework surrounding wills and estates in British Columbia changed with the introduction of new legislation called the Wills, Estates and Succession Act. One of the biggest developments contained in the new law was something called a curative provision. This means that in cases where a will does not fully satisfy the formal requirements, the courts can now cure, or fix, the deficiencies in the broken will and pronounce a will valid.

What must be done in order for a BC court to fix a broken will?

In order to be able to invoke these powers to fix a broken will, the court must be satisfied of two things:
1. First, the court must be satisfied that the document is authentic. Essentially this means the court asks, was this document prepared by the deceased? and;
2. Second, and most importantly, the court must ask, does this document truly represent the intentions of the deceased. That is, is it a fixed and final expression of the deceased’s wishes? Or in other words, did the person making the document mean for it to be their final will?
The courts, in determining whether a document represents a valid will, will look to a wide variety of evidence. This evidence includes: the presence of the deceased’s handwriting; whether the will had witness signatures; whether the document revoked previous wills; did the testator include plans for funeral arrangements; and did the testator include specific gifts.

Want your last wishes respected? Avoid creating a broken will in the first place.

Since the new laws have come into force, people have creatively tried to prove a number of documents as being valid wills. These range from handwritten notes on scrap paper, to journal entries, to letters. Although the courts are given broad power, the further a document departs from the formal requirements of a will, the harder it is for the courts to find it embodies the deceased’s testamentary intention. In the end, it is always best to seek the advice of a lawyer in finalizing your will. Failing to do so can mean your final wishes will be ignored.

I hope you have learned something about the law from this blog. Please feel free to like us on Facebook, follow us on Twitter and subscribe to our YouTube channel to receive notice of our future weekly video blogs on the law.

Matthew Melnyk is an associate lawyer with League and Williams. Matthew practices in the areas of injury law, estate disputes and marine law. He is a competent lawyer who practices as part of the League and Williams team and may be reached at 250-888-0002 or via email at info@leaguelaw.com. League and Williams offers free consultations and has built their practice on client satisfaction.
February 20, 2017
There’s a Will, but it Could be an Invalid Will

Being left out of the will of a close family member can be a shocking experience and may leave a person who was expecting an inheritance feeling betrayed. Family relationships between beneficiaries of the will and those left disinherited can be incredibly strained. Sometimes the revelations of a will come as a complete surprise and sometimes there are good reasons for the confusion and bewilderment – after all, just because a will exists, does not mean that it is valid or that it reflects the true wishes of the deceased. What circumstances in British Columbia would make for an invalid will? When should beneficiaries question the validity of a will and how can they contest it?

In order for a will to be considered valid and binding, there are a number of factors that must be satisfied to meet the requirements of BC Estate Law and the Wills, Estates and Succession Act that came into effect March 31, 2014. If these factors are not satisfied, the validity of the will may be contested in court, and there is a good chance the will would be declared an invalid will.

Who Can Make a Will?

Under British Columbia law, there are two factors that the person making the will (the testator) or having a will written on their behalf must meet in order for the will to be considered valid. First, the testator must have been mentally competent during the time the will was made. If a person is contesting the testator’s mental capacity at the time the will was written, that person will have to provide the court with medical evidence that supports the claim that the testator lacked mental capacity at the time that the will was made.

Second, in British Columbia, the testator must be 16 years of age or older at the time the will was made.

Who has to Witness a Will?

If the testator is of sound mind and of legal age and makes a will, that will must be signed by the testator in the presence of two witnesses who must meet specific requirements. The witnesses must sign the will as proof of their presences, and neither witness can be a beneficiary of the will, nor be a spouse of a named beneficiary of the will. If a will is not appropriately witnessed, it may be declared invalid by the court.

How does a person get a will declared invalid by the court?

If a person has a legitimate reason to believe that the will that was left is invalid, it is important to seek legal advice. A lawyer who is experienced in BC Estate Law can help identify legal problems with a will, effectively guide the client through the process of contesting the document in court and enable the client to get the share of the estate that they are entitled to. Contact us via phone at 250-888-0002 or via email at info@leaguelaw.com.

March 23, 2015