Avoid BC Estate Litigation by Making a Will that Meets Formality Requirements

BC estate litigation can be rooted in an attack on the formal validity of the will – in other words, a will can be contested in court on the basis that it failed to meet the execution and attestation requirements to make it a valid will. Let’s examine the factors that must be satisfied for a BC will to be valid, whether there is a way to “save” a will that fails to meet the formal validity requirements, and what happens if a will is declared invalid.

Avoiding BC estate litigation: Requirements for a formally valid will

For a BC will to be valid and binding, it must meet certain formal requirements in law. The formal requirements for making a valid BC will are set out in section 37(1) of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 [“WESA”]. To be valid, a will in BC 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.

Subsection 37(2)(a) of WESA provides that a will that does not comply with section 37(1) is invalid unless the court orders it to be effective as a will under section 58, which is known as a “curative provision” that allows the court to cure deficiencies in certain circumstances.

“Curative provision” new to BC estate litigation

When WESA came into force on March 31, 2014, it heralded a significant overhaul of BC wills, estates and succession law. Before WESA was enacted, the validity of BC wills was governed by the Wills Act, which required will-makers to comply strictly with execution and attestation formalities for creating a will for it to be valid. The same was true for revoking, altering or reviving a will: see ss. 14, 17, 18 of BC’s Wills Act.  At times, these formal requirements led to a will-maker’s testamentary intentions being defeated for no good reason. As a result, BC lawmakers recommended the law be changed to give the court power to relieve against the consequences of non-compliance with testamentary formalities as part of a general reform of wills and estate administration law. That recommendation was adopted in what is now section 58 of WESA.

Invoking the curative provision in BC estate litigation

Remedial in nature, section 58 of WESA confers a broad discretion on the court to order that a “record or document or writing or marking on a will or document” be fully effective, despite non-compliance with the statutory requirements. Put another way, section 58 of WESA authorizes the court to order that a document that does not comply with the requirements of WESA is fully effective as though it had been made in compliance with those requirements. To make such an order, the court must be satisfied that the document represents the testamentary intentions of the will-maker.

Section 58 cannot cure substantive invalidity

Although section 58 of WESA permits the court to cure issues of formal invalidity in certain circumstances, it cannot be used to uphold a will that is substantively invalid. The policy reason behind section 58, which was recently affirmed by our Court of Appeal in the BC estate litigation matter of Quinn Estate v. Rydland, 2019 BCCA 91, is to enable the courts to step in where a person has taken real steps to make a will, but the formalities have fallen short. It does not exist to enable the court to validate documents that do away with testamentary formalities altogether. Rather, what section 58 reflects is a policy to ensure that a document that reflects the deliberate, fixed and final intention of a will-maker is not set aside on the basis of failure to comply with a formality.

The outcome if a BC will is found to be invalid

If the requirements for making a valid will in section 37(1) are not met, the validity of the will may be contested in court. If it is established that the section 37(1) factors were not met, the will can be declared invalid unless the invalidity can be “cured” under section 58. If the court grants an order curing the deficiency under section 58(3), the will may be admitted to probate. If the formal validities are lacking and the deficiencies cannot be cured by section 58, the will is declared to be invalid and, if there is no valid previous will, the rules of intestacy would then apply to determine how the estate is distributed. See here for our BC estate litigation lawyers’ discussion of the rules of intestacy that apply when someone dies without a valid will.

Bottom line on avoiding BC estate litigation

The BC estate litigation lawyers at Onyx Law Group have seen many estate files where family members dispute the will because the will was prepared inadequately. Failure to comply with formal validities can lead to a will being declared invalid. (Note that there are other common pitfalls that may lead to BC estate litigation disputes – see here for our tips on how to avoid them). As discussed, BC estate law gives the courts the power to cure deficiencies in certain circumstances where a will-maker has taken real steps to make a will, but the formalities have fallen short. If you would like to discuss how this applies to your BC estate litigation claim, we invite you to call (604) 900-2538 to schedule a free 30-minute consultation with Onyx Law Group.