5,109
edits
Difference between revisions of "Making and Executing a Will (16:III)"
From Clicklaw Wikibooks
Making and Executing a Will (16:III) (view source)
Revision as of 00:10, 10 August 2021
, 00:10, 10 August 2021→E. Attesting the Will
| Line 368: | Line 368: | ||
==== a) Meaning of Signature ==== | ==== a) Meaning of Signature ==== | ||
'''There must be a signature or a mark on the will intended to be a signature'''. Thus, something less than a signature, e.g. initials, will be sufficient where it is intended to represent the name and to be a signature (''In the Goods of Chalcraft'', [1948] 1 All ER 700; ''Bradshaw Estate, Re'', [1988] NBJ No 709). Where necessary, the will-maker’s hand may be guided by another person; however, this requires the will-maker’s clear direction or consent (''Re: White'', (1948) 1 DLR 572 (NS App Div)). | '''There must be a signature or a mark on the will intended to be a signature'''. Thus, something less than a signature, e.g. initials, will be sufficient where it is intended to represent the name and to be a signature (''In the Goods of Chalcraft'', [1948] 1 All ER 700; ''[https://www.canlii.org/en/nb/nbqb/doc/1988/1988canlii7832/1988canlii7832.html?resultIndex=2 Bradshaw Estate, Re]'', [1988] NBJ No 709). Where necessary, the will-maker’s hand may be guided by another person; however, this requires the will-maker’s clear direction or consent (''Re: White'', (1948) 1 DLR 572 (NS App Div)). | ||
The will-maker need not sign the will themselves. Sections 1(1) and (2) of ''WESA'' provides that the “will-maker’s signature” includes “a signature made by another person in the will-maker's presence and by the will-maker's direction.” Where someone else signs on behalf of the will-maker, there must be some act or word by the will-maker constituting a direction or request. When someone else signs, that person may sign in either the will-maker’s name or their own name, but this circumstance should be noted in the attestation clause (''Re Fiszhaut Estate'', (1966) 55 WWR 303 (BCSC)). If this issue should arise, there must be further review to ensure the signature’s legal validity. | The will-maker need not sign the will themselves. Sections 1(1) and (2) of ''WESA'' provides that the “will-maker’s signature” includes “a signature made by another person in the will-maker's presence and by the will-maker's direction.” Where someone else signs on behalf of the will-maker, there must be some act or word by the will-maker constituting a direction or request. When someone else signs, that person may sign in either the will-maker’s name or their own name, but this circumstance should be noted in the attestation clause (''Re Fiszhaut Estate'', (1966) 55 WWR 303 (BCSC)). If this issue should arise, there must be further review to ensure the signature’s legal validity. | ||
| Line 374: | Line 374: | ||
==== b) Position of Signature ==== | ==== b) Position of Signature ==== | ||
'''Section 37(1)(b) of ''WESA'' requires the signature be at the end of the will'''. Section 39(2) defines when a will is deemed to be signed at the end and provides that a disposition made below or after the signature is of no effect. Case law has taken a liberal view of these requirements, finding a signature not at the end to have been intended to be at the end (''In the Goods of Henry Hornby'', [1946] All ER 150 and ''Currie v Potter'' [1981] 6 WWR 377 (Man QB)) and finding a disposition after the signature to have been intended to precede the signature (''Palin v Ponting'', [1930] para 185, considered in ''Beniston Estate v Shepherd'', (1996) 16 ETR (2d) 71 (BCSC)). However, to ensure the validity of the will and all dispositions, the will should be signed at its end, after all dispositions. When a will is more than one page, it should be signed at the end of the last page and there should be a portion of the will on the last page. The last page of the will should indicate the will-maker is signing this page as the last of all the pages constituting the will. Although not required, the will-maker and witnesses should initial the other pages of the will. | '''Section 37(1)(b) of ''WESA'' requires the signature be at the end of the will'''. Section 39(2) defines when a will is deemed to be signed at the end and provides that a disposition made below or after the signature is of no effect. Case law has taken a liberal view of these requirements, finding a signature not at the end to have been intended to be at the end (''In the Goods of Henry Hornby'', [1946] All ER 150 and ''[https://www.canlii.org/en/mb/mbqb/doc/1981/1981canlii3424/1981canlii3424.html?autocompleteStr=Currie%20v%20Potter%20%5B1981%5D%206%20WWR%20377%20(Man%20QB)&autocompletePos=1 Currie v Potter]'' [1981] 6 WWR 377 (Man QB)) and finding a disposition after the signature to have been intended to precede the signature (''Palin v Ponting'', [1930] para 185, considered in ''Beniston Estate v Shepherd'', (1996) 16 ETR (2d) 71 (BCSC)). However, to ensure the validity of the will and all dispositions, the will should be signed at its end, after all dispositions. When a will is more than one page, it should be signed at the end of the last page and there should be a portion of the will on the last page. The last page of the will should indicate the will-maker is signing this page as the last of all the pages constituting the will. Although not required, the will-maker and witnesses should initial the other pages of the will. | ||
'''NOTE:''' Bill 21 includes an amendment to ''WESA'' allowing for electronic signatures, however the amendment has not yet come into force at the time of this publication. If the amendment is brought into force, section 39(1) of ''WESA'' will not apply to electronic signatures so it will be particularly important to ensure that electronic signatures are properly placed to indicate that the will-maker intended to give effect to the entire will. See '''Section III.D.2: Electronic Wills''', for more information. | |||
=== 2. Signature of Witnesses === | === 2. Signature of Witnesses === | ||
| Line 384: | Line 386: | ||
Both witnesses must also attest after the will-maker makes or acknowledges their signature in their joint presence. Though they need not sign in each other’s presence, they must each sign in the presence of the will-maker who must actually see or be able to see the witnesses sign (''WESA'', s 37(1)(c)). '''Attesting witnesses must be able to confirm the will-maker’s execution of the will; they do not need to be aware of the contents of the will'''. | Both witnesses must also attest after the will-maker makes or acknowledges their signature in their joint presence. Though they need not sign in each other’s presence, they must each sign in the presence of the will-maker who must actually see or be able to see the witnesses sign (''WESA'', s 37(1)(c)). '''Attesting witnesses must be able to confirm the will-maker’s execution of the will; they do not need to be aware of the contents of the will'''. | ||
''' | On August 14, 2020, ''Bill 21'' received Royal Assent and made significant changes regarding the ''WESA'' presence requirements for witnessing a will. ''Bill 21'' added section 35.2 to ''WESA'', which allows individuals to be in each other’s “electronic presence” to satisfy the requirement that a person take an action in the presence of another person, or while other persons are present at the same time. Electronic presence is defined as “the circumstances in which 2 or more persons in different locations communicate simultaneously to an extent that is similar to communication that would occur if all the persons were physically present in the same location” (''WESA'', s 35.1). | ||
This means that signing parties may be physically or electronically present for the execution and witnessing of a will to satisfy the presence requirements of ''WESA'' sections 37(1)(b) and (c). If a will-maker and witnesses are in each other’s electronic presence, the will may be made by signing complete and identical copies of the will in counterpart, and those copies of the will in counterpart are deemed to be identical even if there are slight differences in the format of the copies (''WESA'', s 35.2). | |||
The electronic presence amendments in ''Bill 21'' are effective retroactively beginning on March 18, 2020. Before ''Bill 21'', Ministerial Order No. 161 (the “Order”) allowed for electronic witnessing of wills in response to the COVID-19 pandemic. | |||
The requirements for electronic witnessing under the Order are slightly different from the requirements laid out in ''Bill 21''. The Order required that one of the witnesses be a lawyer or notary public, and also required that the will include a statement saying that it was signed and witnessed in accordance with the Order. Section 11(3) of ''Bill 21'' stipulates that a will made on or after March 18, 2020 that complies with section 35.2 of the ''WESA'' may be valid, whether or not it purports to have been made under the Order. ''Bill 21'' contains a provision which will eventually repeal the Order, however that section as well as several other sections of ''Bill 21'' have not yet been brought into force. See '''Section III.D.2: Electronic Wills''', above for more information on ''Bill 21''. | |||
==== b) Competence of Witnesses ==== | ==== b) Competence of Witnesses ==== | ||
| Line 396: | Line 404: | ||
Section 43 of ''WESA'' provides that a gift to a witness, or the spouse of a witness, to a testamentary document is void. Section 43(3) of ''WESA'' explicitly provides that, even if such a gift is void, this has no effect on the validity of the remainder of the will. | Section 43 of ''WESA'' provides that a gift to a witness, or the spouse of a witness, to a testamentary document is void. Section 43(3) of ''WESA'' explicitly provides that, even if such a gift is void, this has no effect on the validity of the remainder of the will. | ||
There is one exception to this rule. Section 43(4) of ''WESA'' provides that, if the court is satisfied that the will-maker intended to make the gift to the person, the gift to the witness will not be void. In ''Bach Estate, Re'', 2017 BCSC 548 at para 54, the Court held that section 43(4) of ''WESA'' empowers the court to declare a presumptively void gift valid if it “is satisfied the document represents the testamentary intentions of that deceased person”. The court also held that “extrinsic evidence is admissible on the question of testamentary intent, and the Court is not limited to the evidence that an inspection of the document provides.” See also ''Re Estate of Le Gallais'', 2017 BCSC 1699. | There is one exception to this rule. Section 43(4) of ''WESA'' provides that, if the court is satisfied that the will-maker intended to make the gift to the person, the gift to the witness will not be void. In ''[https://www.canlii.org/en/bc/bcsc/doc/2017/2017bcsc548/2017bcsc548.html?autocompleteStr=Bach%20Estate%2C%20Re%2C%202017%20BCSC%20548%20&autocompletePos=1 Bach Estate, Re]'', 2017 BCSC 548 at para 54, the Court held that section 43(4) of ''WESA'' empowers the court to declare a presumptively void gift valid if it “is satisfied the document represents the testamentary intentions of that deceased person”. The court also held that “extrinsic evidence is admissible on the question of testamentary intent, and the Court is not limited to the evidence that an inspection of the document provides.” See also ''[https://www.canlii.org/en/bc/bcsc/doc/2017/2017bcsc1699/2017bcsc1699.html?autocompleteStr=Re%20Estate%20of%20Le%20Gallais%2C%202017%20BCSC%20&autocompletePos=1 Re Estate of Le Gallais]'', 2017 BCSC 1699. | ||
== F. Court’s Power to Cure Deficiencies and Rectify Wills == | == F. Court’s Power to Cure Deficiencies and Rectify Wills == | ||
