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

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.