British Columbia’s Wills Act contains many technical requirements for executing a will. While these rules are designed to protect against fraud, they can also create circumstances where the testator’s clear intentions cannot be upheld due to his or her inadvertent failure to comply. The legislature has recognized the difficulties that the strict requirements can cause, and has provided some leeway in the new legislation, the Wills, Estates and Succession Act (“WESA“). WESA is expected to come into force later in 2011 or early 2012.

Witness as beneficiary

Currently, if a witness as to the will is a beneficiary or the spouse of a beneficiary under the will, the gift to that person is void. However, WESA will allow some flexibility in such situations. Specifically, it will allow the court to determine whether the will-maker (WESA‘s term for ‘testator’) intended to make the gift despite the fact that the person was a witness to the will.

Age Requirements for a Will

At present, a person must be 19 years old to make a will. An exception applies to those that are or have been married, in order to protect the interests of spouses and children. However, this exception does not extend to unmarried minors with children and/or common law spouses. WESA reduces the age requirement to 16 and removes the exception for married minors so that unmarried and married minors are treated equally.

Marrying after Execution of Will

Currently, unless a will is stated to be in specific contemplation of marriage to a certain person, marrying after execution of a will revokes the will. WESA removes this requirement. It had been thought that this requirement may not be well-known by the general public, and thus could accidently frustrate the intentions of the will-maker. As well, given the rising number of common law marriages, this requirement would apply inconsistently to formally married and common law couples.

Power to rectify

WESA will give the courts greatly expanded powers to rectify a will. Rectification may be ordered if the court determines that the otherwise valid will does not carry out the will-maker’s intentions because of an accidental slip or omission, a misunderstanding of the will-maker’s instructions by the lawyer, notary or another person involved in the preparation of the will, or a failure to carry out the will-maker’s instructions in drafting the will.

Power to cure deficiencies

Until WESA comes into force, the court has little power to cure a failure to comply with technical requirements in executing a will. WESA allows the court to look to another “record, document or writing, or marking on a will” to help determine the will-maker’s true intentions, and to give effect to them. Accordingly, the court will have the power to order that a written or electronic record stand as a person’s last will, for example:

• an unsigned or improperly executed will
• lawyer’s notes from discussions with the person
• a copy of a will stored on the person’s computer or electronic tablet
• an email sent from the person setting out his or her testamentary intentions

It remains to be seen how far British Columbia courts will go in exercising this new authority. Decisions from courts in other provinces that have already adopted similar provisions may provide some indication. For example, the Manitoba Court of Appeal in the case of George v. Daily (1997) held that a non-compliant document may be declared a valid will of the deceased under similar rules only if it can be shown on a balance of probabilities that the document is a “deliberate or fixed and final expression of intention as to the disposal of his/her property on death”.

The changes to be introduced by WESA discussed above give much greater leeway to give effect to the intentions of the will-maker, at the expense of reducing certainty. The court’s expanded powers will likely lead to increased litigation, such as by disappointed heirs coming forward with e-mail or other writings of the deceased to demonstrate that the will does not show the deceased’s “true intentions”. However, the new powers may also have the effect of “saving” a will that otherwise would have been deemed invalid, or giving effect to clear intentions that otherwise would have been ignored at law.