League and Williams Lawyers

Tag: valid wills

  • Invalid Wills: When a Simple Note Can Become a Valid Will

    Invalid Wills: When a Simple Note Can Become a Valid Will

    A BC woman found dead without any legal will written in her name left a hand-written note in her car explaining her final wishes for how she wanted her estate to be distributed. The question before the courts was whether this note could be pronounced a valid will or if this woman had died intestate (without a legal will). In BC, the criteria for what makes a document a valid will is rather straightforward. The will or testamentary document must satisfy these three criteria:

    • Must be in writing;
    • Must be signed at the end; and,
    • Must be properly witnessed.

    When the Courts Can Rule an Invalid Will as Valid

    An invalid will in BC can be revised by the courts to make the will effective.

    According to 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. A judge only makes a curative provision to an invalid will if they are satisfied that the will was authentic (written by the owner) and truly representative of the owner’s intentions at the time of their death (i.e. the document was meant to be their final will despite its deficiencies).

    Well, you’re probably wondering, what does this mean? Can a simple note be an effective will in BC? Let’s analyze the case mentioned above.

    The Case of the Hand-Written Note

    The woman had suffered with depression for years and her death was deemed to be a suicide. The note was located in her car, near where her body was found. The note outlined precisely how to distribute her estate upon her passing. It was evident that this was an attempt to create a valid will. Comparing this to the criteria of a valid will above, the note was in writing and signed at the bottom, but it was not witnessed by anyone. A will that is clearly violating one of these requirements is an invalid will in BC unless:

    • The court orders it as effective (curative provision);
    • It is a valid will in accordance with other laws; or,
    • It is a valid will under another provision of the WESA.

    The question now was whether this note could be deemed an effective will through a curative provision by the courts.

    Was the Note Written by the Owner?

    The woman’s spouse stated that this note was clearly her handwriting. One of her brothers also confirmed that it looked like her handwriting. The signature at the bottom was compared with her past signatures, such as on her bank cards and was a close match. There was no evidence that this note was written by someone else, and the judge ruled that this had been written by the woman – it was cured and considered a valid document.

    Did the Note Truly Represent her Final Intentions?

    The spouse, who lived with the deceased prior to her death, searched through all of her belongings to find any note or document representing a will. He did not find anything. There was also no will found under her name with the Vital Statistics Agency. Among other factors, the judge noted the following in determining if this note was her final intentions:

    • She explicitly calls the note her will;
    • Even though it was not witnessed, it was likely not witnessed because of the circumstances (being written in moments of contemplation of taking her own life);
    • The note was found in her car – showing an intention for it to be found upon her death;
    • The note was dated the same day she went missing – it was written close to her time of death;
    • The language used indicated conclusiveness; and,
    • There were no allegations of undue influence or incapacity when she wrote the note.

    The judge determined that this note was a true representation of her final intentions. Because the note was deemed to be authentic and truly representative of her final intentions, the note was ruled fully effective as a legal will.

    This case demonstrates the courts ability to honour a person’s final wishes even when proper will-making procedures were not followed. If the courts had ruled that this note was invalid and could not be revised, then the woman would have died intestate and her estate could only be given to either her mother or spouse.

    For more information, read our page on when a will is considered invalid.

    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.

  • Whiting-Out or Erasing Part of a Will: Valid Modification?

    Whiting-Out or Erasing Part of a Will: Valid Modification?

    After a testator has finished writing their will, they may want to make a modification at a later date. There are specific procedures that will-writers must follow for any revision in a will to be legally valid. While it can be clear what the testator had intended by their revision, unofficial changes to the document can result in a lengthy court process to cure the will to make the change legally valid.

    Valid Will Alterations in BC

    Section 54 of the Wills, Estates and Succession Act (WESA) identifies the circumstances in which modifications to a will are valid. The criteria for a valid modification is the same criteria for the initial creation of a valid will. In order for a will’s modifications to be legally valid in BC, it must:

    1. Be in writing;
    2. Be signed by the testator, and;
    3. Be properly witnessed and signed by the witnesses (two or more people).

    Sometimes, it’s unreasonable to expect the above steps for a simple revision. S.54 of the WESA further explains these requirements can be set aside when:

    1. The alteration is not substantive;
    2. The alteration is to adjust form, style, or a typographical error;
    3. The alteration is made effective by an order pursuant to the courts curing the will.

    To explain part 3, the Courts can rectify an error in a will to ensure the will reflects the testator’s intentions and is valid. This happens when the will-writer had a clear intent to modify the will, but did not make a valid modification or made a mistake. The courts can rectify an error when it’s clear that the testator made a mistake.

    Using White-Out to Modify a Will

    Eraser marks and white-out could be used to validly modify a will.

    Levesque Estate (Re) (2019) asked whether a will in BC could be validly modified using White-Out, a white-coloured liquid used to cover ink on paper. The will-writer originally wrote in her will to equally split her estate amongst her children and eldest grandchild. After her death, beneficiaries discovered that the provision giving a share of the estate to the grandchild was covered with White-Out.

    The Court’s Decision

    Unfortunately, in this case there were no witnesses or signatures to verify the modifications. Since this is not a valid modification, the Courts looked into whether the requirements could be avoided. The alteration was substantial and the original was not completely illegible – when held under light, one could easily read what was under the white-out. The only way this alteration could be valid was if the Courts cured the will to rectify the error. The Courts ruled that the intention of the will-writer was to remove the grandchild from the will. The lack of proper procedures in making the change was not sufficient to prevent her intentions from being followed. The grandchild was legally removed as a beneficiary of the will. Because the claim arose from the actions of the will-writer, the estate paid for the associated legal costs.

    If you want to make a modification to your will, it’s important to follow the proper procedures in doing so. There must be two witnesses of your signature. Failing to follow the adequate procedures will likely result in Court proceedings, like in the example above. While the will-writer’s intentions were followed, the trial costed significant time and money for the estate and beneficiaries. Further, a will-writer cannot be certain that the Courts will uphold a change. It’s not always possible to establish that the will-writer made the change.

    If you want to make a revision to your will, contact an experienced estate lawyer today. We’ll ensure your will is modified validly.

    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.

  • Valid Reasons for Disinheriting a Child

    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.

  • Fixing a Broken Will – What can the court do?

    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.