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Difference between revisions of "Making and Executing a Will (16:III)"
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Making and Executing a Will (16:III) (view source)
Revision as of 23:59, 9 August 2021
, 23:59, 9 August 2021→D. Executing a Will
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=== 1. Presumption of Proper Execution === | === 1. Presumption of Proper Execution === | ||
Inclusion of a signed attestation clause will raise a presumption that the will is properly executed (''Singh Estate (Re)'', 2019 BCSC 272 paras 58-60). An attestation clause is a clause at the end of the will where the will-maker signs their name testifying to the fact that they are signing the approved will. This is also the place where the two witnesses must sign to show that they have witnessed the will-maker approving of the will. | Inclusion of a signed attestation clause will raise a presumption that the will is properly executed (''[https://www.canlii.org/en/bc/bcsc/doc/2019/2019bcsc272/2019bcsc272.html?autocompleteStr=Singh%20Estate%20(Re)%2C%202019%20BCSC%20272%20&autocompletePos=1 Singh Estate (Re)]'', 2019 BCSC 272 paras 58-60). An attestation clause is a clause at the end of the will where the will-maker signs their name testifying to the fact that they are signing the approved will. This is also the place where the two witnesses must sign to show that they have witnessed the will-maker approving of the will. | ||
If special circumstances exist, e.g. the will-maker is blind or illiterate, a wills form manual should be consulted in order to draft the appropriate attestation clause. | If special circumstances exist, e.g. the will-maker is blind or illiterate, a wills form manual should be consulted in order to draft the appropriate attestation clause. | ||
=== 2. | === 2. Electronic Wills === | ||
According to ''Re Johnston Estate'', 2017 BCSC 272, the rule in ''Cherry v Boultbee'', 41 ER 171 applies in Canada. This means that the beneficiary is required to bring their debts towards the estate into account, even if the debt claim would otherwise be statute-barred by the ''Limitations Act''. ''Re Johnston Estate'' states that “the purpose of the rule was to prevent a beneficiary who owed money to an estate from receiving more than their fair share of the estate.” | Bill 21, ''Wills, Estates and Succession Amendment Act'', 5th Sess, 41st Parl, British Columbia, 2020, (“''Bill 21''”), received Royal Assent on August 14, 2020, however at the time of this publication most sections of ''Bill 21'' have not yet come into force. Currently, a will must be in writing in order to be valid pursuant to section 37(1)(a) of the ''WESA''. If the relevant sections of ''Bill 21'' come into force in the future, it will be possible to satisfy the writing requirement if the will is in electronic form. | ||
Given that it is currently unclear when, and the extent to which these amendments will be brought into force, it is important to keep appraised of the status of ''Bill 21'' and to rely on an updated version of the ''WESA''. If the amendments come into force, WESA will likely be amended to include a definition of “electronic form” for the purposes of determining what requirements must be met. | |||
The amendments in ''Bill 21'' will also permit the will-maker and witnesses to use electronic signatures to satisfy the signature requirements in sections 37(1)(b) and (c) of ''WESA''. Note that section 39(1) of ''WESA'' will not apply to electronic signatures, so it will be important to place the electronic signature in the proper location to make it clear that the will-maker intended to give effect to the entire will. Similar to the amendments allowing for electronic wills, the sections of ''Bill 21'' allowing for electronic signatures have also not yet come into force. | |||
=== 3. Beneficiary's Debt to Estate === | |||
According to ''[https://www.canlii.org/en/bc/bcsc/doc/2017/2017bcsc272/2017bcsc272.html?autocompleteStr=Re%20Johnston%20Estate%2C%202017%20BCSC%20272&autocompletePos=1 Re Johnston Estate]'', 2017 BCSC 272, the rule in ''Cherry v Boultbee'', 41 ER 171 applies in Canada. This means that the beneficiary is required to bring their debts towards the estate into account, even if the debt claim would otherwise be statute-barred by the ''Limitations Act''. ''Re Johnston Estate'' states that “the purpose of the rule was to prevent a beneficiary who owed money to an estate from receiving more than their fair share of the estate.” | |||
== E. Attesting the Will == | == E. Attesting the Will == | ||
