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.