Will Validity FAQ

  • Is a homemade will valid?

    • A will must be in writing
    • It must be signed by the testator at the end
    • It must be witnessed by two witnesses, both present when the testator signed, or present when the testator acknowledged her signature
    • Both the witnesses must sign in the presence of the testator

    These technical requirements are set out in the Wills, Estates and Succession Act.  However, the Act contains other sections that save wills which do not meet these requirements.  As such, if the court is satisfied that an email or document saved on a computer represents the testamentary intentions of the deceased, that electronic document can be admitted into probate.

    A will may be invalid for many reasons, affecting who inherits.  We can determine whether it is valid.  Contact us.

    Read the Wills Act

  • Is a will that tells the executor to distribute the estate "as she sees fit" valid?

    • Yes. It is valid, and amounts to a direct gift to the executor

    In Tassone v. Pearson the will was done on a pre-printed, drug store form.  It gave the entire estate to the executor, "to be distributed as seen appropriate by my executor".  The executor applied to court to have the court interpret the will, seeking an order that she was entitled to take the entire estate for herself.  The order was granted.

    This case serves as a warning to those who believe that a home-made will is good enough.  Conflicting clauses in the will made the court application necessary, reducing the size of the estate.

    We do not draft wills, but we can give advice on problematic wills.  Contact us.

    Read the case:  Tassone v. Pearson

  • Is a will valid if the will-maker had dementia when it was made?

    Yes, if the will-maker understood

    • That she was making a will, and that a will disposes of her property when she dies,
    • What property she owned, and in a general way what it was worth,
    • Which people are the natural objects of her generosity, and
    • How she wants to distribute her property.
    • The testator must also be free of delusions that affect the making of the will

    The will-maker (testator) must understand the 1st four points on her own.  It is not enough to simply make rational responses to questions or repeat some memorized formula.  However, the testator need not have an accountant’s knowledge and understanding of her estate, know what specific investments are in her portfolio or how much income they generate.  In fact, the courts know that if this was required many people would be unable to make a will.

    If the testator understood these things, the will is valid whether she had some degree of dementia at the time or not.  The court will look at the evidence of both doctors and lay people to determine whether the testator had testamentary capacity.

    In Maliwat v. Gagne, the testator had been diagnosed with dementia three years before signing the will.  Before making his will he had problems with his bills and banking, and had several minor car accidents.  A few weeks after he signed the will he was seen by a geriatric psychiatric outreach team and could not tell them what year it was, when he was born, when he was married, what his address was, or what his income, expenses, bills, medication or illnesses were.  A few months later he could not remember where he left his car.  Despite his problems, the testator was proud of his independence and refused help.  The court weighed all these factors and concluded that the testator did not have testamentary capacity when he signed the will.

    In Brammall v. United Kingdom the court considered whether the testator’s delusions affected his ability to make a will.  He thought somebody was poisoning him by introducing noxious gases into his apartment.  He thought he was being spied on and followed.  He had been diagnosed as being a depressed hypochondriac with a possible delusional disorder.  He left his estate to the United Kingdom of Great Britain, and left nothing to his relatives.  The court decided that although the testator was delusional, he was rational and competent when it concerned his estate and its disposition.  He knew what he wanted to do with his estate.  He understood its value and he was well aware that he had a brother and a niece.  His attitude to his brother was consistent and it is clear that it was not an affectionate one.  There was no evidence to suggest that the testator’s delusions were responsible for or influenced his decision to exclude his brother from his will.

    Determining if the will is valid can be difficult, but we can help.  Contact us.

    Read the cases: Maliwat v. Gagne

    Brammall v. United Kingdom of Great Britain & Northern Ireland

  • The testator spoke little English – is the will valid?

    • The testator does not need to speak or read English for the will to be valid
    • The will is presumed to be valid if
      • the will was properly executed,
      • after having been read over to or by the testator
      • who appeared to understand it
    • However, the presumption of validity can be rebutted if there are suspicious circumstances
      • involving the preparation of the will,
      • the capacity of the testator; or
      • showing that the free will of the testator was overborne by acts of coercion or fraud.

    In Maddess v. Racz the testator spoke mainly in Hungarian.  Her will gave more to her son, and less to her daughters.  The daughters challenged the will, in part because the testator spoke little English.

    The court said that the will was valid.  There were no suspicious circumstances.  The will was the testator’s only will and it was prepared by a lawyer who was not related to anybody involved.  The testator spoke enough English that she was able to communicate with the lawyer, and he did not feel that a translator was needed.  The evidence did not show that she was frail or forgetful when she made her will.

    This decision was upheld on appeal.

    We can help determine whether a will is valid or not.  Contact us.

    Read the case:  Maddess v. Racz

  • Can an unsigned electronic document be a will or revoke a will?

    • Yes. If a court finds that the e-document represents the testamentary intentions of the deceased, that e-document can be given effect.

    This is a change in the law in BC.  The Wills, Estates and Succession Act came into force in March 2014, so there have been no BC cases interpreting this section.  However, difficult issues will have to be addressed by the courts in the future.  What will happen when two spouses argue, one sends an email out declaring that the relationship is over and the other spouse is disinherited, then they reconcile and the email is forgotten?

    The legal landscape is getting more complex, but we can help.  Contact us.

  • If an original will cannot be found, can a copy of the will be used for probate instead?

    • When an original will has been lost, mislaid or destroyed or is not available, a copy of the will can be admitted to probate
    • When a will last known to be in the custody of the testator cannot be found on his death, there is a presumption that the testator destroyed it.
    • This presumption can be rebutted by evidence, written or oral

    Some of the factors considered by the courts in determining whether the presumption of destruction has been overcome are:

    • Whether the terms of the will were reasonable
    • Whether the testator continued to have good relationships with the beneficiaries of the will up to the date of death
    • Where personal effects of the deceased were destroyed before the search for the will being was done
    • The character of the deceased in taking care of personal effects
    • Whether there were any gifts before death that support or contradict the terms of the copy sought to be probated
    • Statements made by the testator which confirm or contradict the terms of the will
    • Whether the testator was the type to store valuable papers, and had a safe place to store them
    • Whether there is evidence that the testator understood the consequences of not having a will and the effects of intestacy
    • Whether the testator said he had a will

    Each case depends on its particular facts.

    If you have a problem with a lost will, we can help. Contact us