INVALID WILLS
What makes a will valid?
The Wills, Estates and Succession Act lists the requirements which a will must have to be valid in British Columbia:
- The person making the will must have testamentary capacity.
- The person making the will must not be the subject of any undue influence.
- The will must be signed and executed properly.
What is testamentary capacity?
The person making the will must have "testamentary capacity", meaning they understand the contents of the will and can consent to it. The will-maker must have a “baseline level of mental acuity” such that they understand the nature of signing a will and know what property they are leaving in a will. Capacity is often an issue where the will-maker is elderly or suffers from an illness such as dementia. Cases involving testamentary capacity usually involve expert evidence from doctors who can give an opinion on a will-maker’s state-of-mind.
What is undue influence?
The will-maker must not be the subject of any "undue influence" when they sign the will, meaning there cannot be any sort of power imbalance, exploitation, or elder abuse. Many elderly people are vulnerable and dependant on others for their daily needs. If the will-maker was in a position of dependence or domination when the will was signed then the starting presumption is that the will is invalid.
How should a will be signed?
Section 37 of the Wills, Estates and Succession Act sets out certain requirements for signing a will. To be valid, a will must be:
- in writing,
- 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
- signed by 2 or more of the witnesses in the presence of the will-maker.
What happens if a will is invalid?
If the most recent will is not valid because of testamentary capacity, undue influence, or poor execution, then a previous will may be deemed to be the will-maker's last will and testament. If there is no other will, the Wills, Estates Succession Act automatically determines out how the deceased's estate will be divided.
How can an estate litigation lawyer help?
The law on wills and estates in British Columbia, and applying to have a will declared invalid, requires legal expertise in wills and estates law. At Virgin Law Group, our experienced wills and estates lawyers have the knowledge and skills to ensure your wills and estates issues are dealt with efficiently and professionally. Contact us to receive a free 30-minute consultation with an associate lawyer.
