A recent decision from the B.C. Supreme Court shows how a will can be upheld, even if it doesn’t comply with provincial laws. It also serves as a reminder to make your documents as clear and legal as possible.
The issue at hand in Beck Estate was actually a codicil, which is basically an add-on document that amends an existing will. The problem in this case was that the codicil was handwritten and not witnessed.
Some provinces accept holographic wills, which means they’re written and signed entirely in the testator’s own hand and are valid without a witness. B.C., however, does not recognize holographic wills, except in very rare circumstances.
Section 37 of the Wills, Estates and Succession Act says a valid will must be in writing, signed by the will-maker and signed by two witnesses in the will-maker’s presence.
See: can my will be revoked?
In 2010, the province reformed the act, adding a section that allows a court to “cure deficiencies” in a will. And Celena Beck’s will had a significant “deficiency.”
About one week before she died, Beck passed two documents to her executor: a will and an unwitnessed handwritten note saying she had “been forced to change a few things stated in said will.”
Beck apparently thought her handwritten note was a valid codicil, despite being unwitnessed. It was also fairly vague, including one unenforceable clause.
But was it valid?
The 2010 addition to the act says a court can validate a document or even “writing or marking on a will or document” that might normally be invalid under provincial law, provided it clearly represents the “testamentary intentions” of the deceased.
Without getting too deep into the nitty-gritty of it all, the court said Beck’s codicil, flawed as it is, remains a “final expression of her testamentary intention” and is more or less valid.
It didn’t entirely override the will though, because it contained too much unclear language. The codicil only contained one clear gift, a $10,000 bequest to her great-grandson, which the court approved.
While it’s a unique and highly specific case, there are some useful takeaways here for anyone writing a will:
- Don’t leave changes to the last minute; and
- Make sure your documents comply with your provincial laws.
Otherwise, your assets may not go where you want and someone else will make those decisions for you.