Making and Executing a Will (16:III)

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on August 9, 2021.

A. Assessing Will-maker Competence

To make a valid will, a person must:

• Be 16 years of age or older;
• Have testamentary capacity;
• Intend to make a will; and
• Comply with the formalities in WESA.

1. Testamentary Capacity

a) Generally

The will-maker must have the requisite testamentary capacity. No person of unsound mind, who lacks testamentary capacity, is capable of making a valid will. Testamentary capacity is defined through the common law, not statute. The basic test is found in Banks v Goodfellow, (1870) LR 5 B 549 (QB) at para 569 [Goodfellow]; for a recent application of this test, see Nassim v Nassim Estate, [2022] BCSC 402 at para 41 [Nassim].

According to the Goodfellow case and subsequent decisions, to have testamentary capacity a will-maker must:

• Understand the nature of the act of making a will and its effects;
• Understand the extent of the property they are disposing;
• Be able to comprehend and appreciate the claims to which they ought to give effect; and
• Form an orderly desire as to the disposition of the property.

In Nassim, the courts also outline a more “modern” form of the Goodfellow test that was quoted in Laszlo v Lawton, 2013 BCSC 305 at para. 188 [Laszlo], "The testator must be sufficiently clear in his understandings and memory to know, on his own, and in a general way (1) the nature and extent of his property, (2) the persons who are the natural object of his bounty and (3) the testamentary provisions he is making; and he must moreover, be capable of (4) appreciating these factors in relation to each other, and (5) forming an orderly desire as to the disposition of his property…"

Laszlo at para 189. sets out the relevant time for assessing capacity: when the will-maker gave instructions and when the will maker-executed the will.

b) Presumption of Requisite Capacity

The law presumes that a will-maker has the requisite capacity if a will was duly executed in accordance with the formal statutory requirements after being read over to a will-maker who appeared to understand it.

Nevertheless, a student or lawyer should always assess the will-maker’s capacity when taking instructions from the will-maker. This decision should be based on the will-maker’s instructions, not any assertion from the will-maker that they are capable. To this end, avoid asking the will-maker direct questions about capacity, such as “are you capable?”

Some helpful lines of inquiry to assess capacity include determining whether the will-maker can understand the nature of the testamentary act (that they are making a will), can recall the property, and can comprehend that they are excluding possible claimants under intestacy or through a wills variation claim. Delusions or partial insanity will not destroy testamentary capacity unless they directly affect testamentary capacity or influence the dispositions in the will.

c) Presumption of Validity

The rules regarding the burden of proof in relation to testamentary capacity were set out by the Supreme Court of Canada in Vout v Hay, [1995] 2 S.C.R. 876 [Vout]. Essentially, if a will is duly executed in accordance with the formal statutory requirements after being read by a testator who appears to understand the will, it is presumed that the testator possessed the requisite capacity and knew and approved the contents of the will. This presumption may be rebutted where “suspicious circumstances” or undue influence exist (see below).

d) Undue Influence

A will or a portion of it that is made as a result of undue influence is not valid. Undue influence is not mere persuasion but is physical or psychological coercion. There must be capacity to influence and the influence must have produced a will that does not represent the will-maker’s intent. Section 52 of WESA now provides that, if it is shown that the will-maker was in a position where the potential for domination or dependence was present, the burden shifts to the party seeking to defend the will to show that the will was not procured through undue influence. A spouse, parent, or child, etc. may put their claims before the will-maker for recognition. This does not constitute undue influence unless it amounts to coercion. If the will-maker continues to be capable of making decisions freely, the advice or persuasion does not amount to undue influence. See Leung v Chang, 2013 BCSC 976 for a framework for the burden of proof in litigation regarding contested wills.

To challenge a will on the grounds of undue influence, the asserting party must show that the will does not represent the will-maker’s true intentions due to the coercion. If this can be shown, undue influence is presumed. The party that wishes to defend the will may rebut this presumption by showing that the will was a result of the testator’s own “full, free and informed thought”. See Stewart v Mclean, 2010 BCSC 64. Factors that can assist with rebutting the presumption includes proof that:

a) No actual influence was used or there was a lack of opportunity to influence;

b) The will-maker obtained independent legal advice or had the opportunity to do so;

c) The will-maker had the ability to resist the influence; or

d) The will-maker had knowledge and appreciation about what they were doing.

Notwithstanding section 52 of WESA, an individual challenging a will on the basis of undue influence should have sufficient evidence to establish actual undue influence – in challenging the validity of a will, it may be insufficient to simply point to a relationship where there was a potential for the testator’s domination or dependence, without more. An allegation of undue influence is a serious allegation which should not be made lightly. See Ali v Walter Estate, 2018 BCSC 1032, Geffen v Goodman Estate, [1991] 2 SCR 353, Cowper-Smith v Morgan, 2016 BCCA 200.

Allegations of undue influence should not be readily brought. A failed allegation of undue influence may attract severe monetary consequences against the accuser. When one alleges undue influence, they are accusing another of being a fraudster. A failed allegation of fraud more readily justifies an award of special costs against the accuser. Therefore, a party who fails to prove a case of undue influence runs the risk of having to pay the full legal costs of the defending party. As such, undue influence should be carefully considered and investigated before commencing a court action. See Mawdsley v Meshen, 2011 BCSC 923.

The will drafter should ensure that the will represents the will-maker’s intentions and that they are not being coerced into making the will or disposition against their wishes. This is especially relevant where the aged or infirmed are concerned.

e) Suspicious Circumstances

Suspicious circumstances may arise where a person who prepares a will also takes a benefit under it, though this is not exhaustive of all circumstances that raise a suspicion. The suspicion is that the will-maker did not know or approve of the contents of the will, and this suspicion must be removed before probate will be granted (see Riach v Ferris, [1934] SCR 725; see also more recent applications in Clark v Nash, (1989) 61 DLR (4th) 409 (BCCA) and Johnson v Pelkey, (1997) 36 BCLR (3d) 40 (SC)).

Suspicious circumstances surrounding the making of a will is not a stand-alone ground to challenge the validity of a will; however, if a challenger of a will can demonstrate that suspicious circumstances existed when the will was drafted, this may shift the burden to the propounders of the will to prove that the testator had knowledge and approved of the contents of the will when it was made. In Vout v Hay, [1995] 2 SCR 876 at para 25 [Vout], the Court held that suspicious circumstance may be raised by:

a) circumstances surrounding the preparation of the will,

b) circumstances tending to call into question the capacity of the testator, or

c) circumstances tending to show that the free will of the testator was overborn by acts of coercion or fraud.

The Court in Vout held that where the party seeking to overturn the will can point to some evidence, that if believed would prove suspicious circumstances, the burden of proof shifts to the propounder of the will to prove on a balance of probabilities that the will-maker knew and approved of the will’s contents and had the necessary testamentary capacity. This problem is best avoided by ensuring the will is prepared by the will-maker or some independent party (e.g., a student or lawyer) and not by a beneficiary, or the spouse of a beneficiary, under the will.

B. Finding and Appointing a Personal Representative

1. Duties of the Personal Representative

The Executor or Administrator is responsible for the administration of the estate, including inventorying and realizing assets, distributing assets, and winding up the estate.

2. Executor

An Executor is appointed by the will-maker in the will to handle all aspects of the estate after the will-maker’s death. Any person, trust company or financial institution may be an Executor depending on the size of the estate. Although not recommended, a minor may be appointed; however, if they have not reached the age of majority on the will-maker’s death, probate may be delayed.

The will-maker should appoint a person that is willing to act, familiar with the estate, young enough to outlive them, and preferably living in BC. An alternative Executor should also be appointed in case the first Executor is unavailable. The Executor, if they accept the position, must carry out the duties of Executor. The Executor may renounce, under section 104 of WESA, if they have not already intermeddled with the estate. In this scenario, the administration of the estate passes as if they have never been appointed Executor.

3. Administrator

An Administrator is appointed by the court to administer the estate of a person who dies intestate (without a valid will). Section 130 of WESA provides the order of priority among applicants for the administration of an intestate estate. An Administrator cannot act until the court issues a Grant of Administration. A “Grant of Administration with Will Annexed” may be granted where there is a will, but the Executor named in the will cannot or will not act (e.g. due to refusal to act, incapacity, or death of the Executor). The order of priority for administration with will annexed is provided in section 131 of WESA. The Administrator’s legal capacity to act starts from the date of the issuance of the Grant of Administration.

4. Personal Representative is Accountable

A personal representative is a fiduciary at law and must act to the benefit of the estate and the beneficiaries. They cannot purchase from the estate unless they are given specific power to purchase in a will. They are accountable to the estate for any profit made while acting as Executor or Administrator. If the personal representative makes mistakes and causes loss to the estate, that person could be held personally liable and could be required to replace the loss unless the court finds that they acted honestly and reasonably.

5. Remuneration and Benefits

A personal representative may be entitled to remuneration under a remuneration contract or pursuant to an express authority under the will. Otherwise, they are entitled to fair and reasonable remuneration, not to exceed 5 percent of the gross aggregate value of the estate under section 88 of the Trustee Act, RSBC 1996, c 464, and an annual care and management fee not exceeding 0.4 percent of the average market value of the assets. A personal representative may be a beneficiary under the will, though it is a rebuttable presumption that any benefit other than a residuary bequest under the will is in lieu of compensation. See Canada Permanent Trust Co v Guinn, (1981) 32 BCLR 288 (SC).

A trust company can be appointed Executor but usually will not consent unless the assets are substantial.

If the client requires a trust company to be appointed as the Executor, the client should be referred to a private lawyer.

C. Drafting the Will

Section 37(1) of WESA requires that a will be in writing. The will-maker and two or more witnesses in the presence of the will-maker must sign the will. It may be typed or handwritten, or both, as in the case of printed will forms. Subsection 3 sets out that a will is deemed to be in writing if the will is in electronic from.

1. Intention and Precision

A fundamental rule of drafting is to ascertain the will-maker’s intent regarding how the estate will be divided. Have the will-maker consider present desires as well as future possibilities. A beneficiary may predecease the will-maker and the will-maker may want the deceased’s share to go to someone else. Potential will variation claims must be anticipated. A qualified lawyer should be consulted if a wills variation claim may occur. See Section VI: Wills Variation Claims, to determine when this issue might arise.

Use clear and precise language. Those drafting a will should make an effort to use fewer technical legal terms and more common language. The concepts of Latin maxims may be difficult for some to comprehend and cause unnecessary frustration. Using simple language will reassure clients that those who read it will understand what is being conveyed.

Do not use words and phrases that are open to more than one interpretation. Be clear in describing property and time periods. Remember that certain terms used to describe property or relationships have precise legal meanings. Do not use them casually. Be careful when describing property and beneficiaries. For example, the clause “I give the assets in my bank account to John” is poorly drafted. It may mean a savings account, chequing account, or both. John may be a son, nephew or lover.

It is well-settled that courts will allow a successful party in litigation to recover costs from an unsuccessful party. However, the rule that costs follow the event is generally modified in wills variation and interpretation actions. In the absence of misconduct, where the opinion, advice or direction of the Court is sought on a question relating to the validity or interpretation of a will, the Court may order the costs of all parties to be paid out of the estate. See Wilson v Lougheed, 2012 BCSC 1166.

NOTE: The sample clauses throughout this document are merely examples. You should ensure that the clauses you use are appropriate and that the will is internally consistent. For example, if specific bequests are given to various persons, another clause in the will should not dispose of the entire estate, but may dispose of the residue. Consult a qualified lawyer, the CLEBC Wills and Personal Planning Precedents resource or any other books on will precedents for additional assistance with the structure of various clauses.

2. Actual Drafting

A will contains instructions about what should happen after the will-maker’s death. As a result, keep in mind the importance of precision and consistency when drafting a will. Generally, there are several paragraphs common to all wills. The CLEBC’s Wills and Personal Planning Precedents—An Annotated Guide is especially useful.

In addition, the top of each page of the will should identify the page by number and indicate “the Last Will and Testament of [will-maker’s name]” and should be initialled by the will-maker and witnesses.

3. Part One

The first part of the will deals with initial matters. The opening clause of a will is called the “domicile clause” and identifies the will-maker and the place where the will was made. The first paragraph is known as the revocation clause, which cancels any wills previously made. The next paragraph appoints the Executor and Trustee and an alternate Executor and Trustee of the will. Following this paragraph is the guardian clause, which appoints someone to look after any minor children. This is important in cases where the death of both parents occurs at the same time.

a) Opening and Revocation Clauses

The opening clause is fairly standard. It identifies the will-maker, gives their place of residence and may state their occupation:

SAMPLE: “This is the last will of me, [name], of [address], British Columbia.” (See 2020 CLEBC Wills and Personal Planning Precedents, 1.5).

Though the last testamentary disposition of property is generally the effective one, it is standard practice to insert a general revocation clause that revokes all previous wills and codicils. This clause should be included even though the will-maker has never before made a will. It follows the opening clause.

SAMPLE: “I revoke all my prior wills and codicils.” (2020 CLEBC Wills and Personal Planning Precedents, 1.11).

The revocation clause will not revoke other non-will testamentary dispositions such as designations made on insurance policies, RRSPs, etc. It is more effective to designate the estate as the beneficiary to such policies or RRSP if the will-maker wishes for these monies to fall into the estate.

This revocation clause may need to be modified in some situations. For example, a will-maker may have a will in another jurisdiction disposing of assets in that jurisdiction. One should be careful to not unintentionally revoke wills that deal solely with assets in another jurisdiction. Further, a will-maker may elect to create dual wills for the purpose of separating assets that require probate (e.g. real property and most bank accounts) and those that do not require probate (e.g. shares in private companies). Dual wills can help save probate fees and were given effect under section 122(1)(b) of WESA. See s 7.5 of the 2020 edition of the CLEBC Wills and Personal Planning Precedents. A will-maker who wishes to create dual-wills should seek assistance from a lawyer.

b) Appointing the Executor and Trustee

SAMPLE:“I appoint my [relationship] [full name of executor/trustee] (“[executor/trustee name]”) of [executor/trustee’s address] to be my Trustee.

If [executor/trustee name] dies, is incapable, or is unwilling to act or continue to act as my Trustee, I appoint my [relationship] [full name of alternative executor/trustee] of [alternative executor/trustee’s address] to be my Trustee.” (See 2020 CLEBC Wills and Personal Planning Precedents, 3.5)

The Executor also takes the role of a Trustee during the administration of the estate. However, the will-maker may wish to establish a continuing trust and thus appoint different people to be Executor and Trustee of a specific trust. A Trustee is appointed where the will-maker wishes to prevent the beneficiaries from squandering all or part of the estate and to provide for more capable management funds or property, or to provide for infant children until they attain the age of majority. A trustworthy and competent person should be chosen to be the Trustee. This person will have legal title to the property.

A bank or trust company may also be appointed. Their expertise and trustworthiness make them an excellent choice, although the cost may be prohibitive, especially with small and simple estates.

c) Appointing a Guardian

A will-maker may wish to appoint a guardian for their children during their age of minority (see Family Law Act, SBC 2011, c 25 s 53 (1) (a)). Financial assistance should be provided to the guardian to cover the costs of raising the children. This arrangement is made with the Trustee. The guardian must be prepared to accept the position and should be consulted beforehand.

A will-maker cannot grant a greater level of guardianship than they possess. Also note that under section 176 of the Family Law Act, a child’s guardian does not automatically become a trustee of the child’s property. If there is any uncertainty regarding what type of guardianship the client has, or whether the client even has guardianship, the client should be referred to a family law lawyer, as LSLAP cannot deal with questions of family law.

Those appointing a guardian should be aware that the court could review such a decision. As well, members of the family can apply to have a decision in the will set aside. However, it must be strictly proven that the guardian appointed by the will-maker is unsuitable for the position.

SAMPLE: “I appoint my [relationship] [full guardian name] (“[guardian name]”) to be the guardian of my minor children. It is my hope that, in accordance with the provisions of the Family Law Act of British Columbia, [guardian name] will appoint a guardian in [preferred pronoun] will, or otherwise, to be the guardian of my minor children.” (2020 CLEBC Wills and Personal Planning Precedents, 4.9)

For more information, see Chapter 3: Family Law.

4. Part Two

The second part of the will addresses the disposition of the estate. The Executor/Trustee is given the power to deal with the estate as they see fit, namely, to sell assets and convert into money or postpone such conversion of the estate for such a length of time as they think best. Further, the Executor/Trustee directs payment of debts, specific bequests, cash legacies, gifts to the spouse, and gifts to children (gifts of the residue of the estate).

a) Vesting Clause

This clause gives the Executor/Trustee the power to deal with the estate as they see fit, in keeping with the will-maker’s wishes under the will and the Trustee’s fiduciary duties.

SAMPLE: “I give my Trustee all my property of every kind and wherever located to administer as I direct in this Will. In administering my estate, my Trustee may convert or retain my estate as set out in paragraph(s)... [refer to the applicable “convert, keep or invest” clause] of this Will” (2020 CLEBC Wills and Personal Planning Precedents, 7.3)

Immediately after this clause, the student should insert the clause “I direct my Trustee to hold that property on the following trusts:” See the sample will template in 2020 CLEBC Wills and Personal Planning Precedents, 48.2, to better understand how this would look.

b) Payment of Debts

This clause is usually inserted even though the Executor/Trustee is legally required to pay debts outstanding at death, reasonable funeral expenses, taxes, and legal fees out of the estate.

SAMPLE:

“(a) to pay out of my estate:

(i) my debts, including income taxes payable up to and including the date of my death [and any financial charges with respect to any property which, pursuant to this will, is transferred free and clear to a beneficiary for beneficiaries];

(ii) my funeral and other expenses related to this Will and my death; and

(iii) all estate, gift, inheritance, succession, and other death taxes or duties payable in respect of all property passing on my death, including:

A. insurance proceeds on my life payable as a consequence of my death (but excluding the proceeds of insurance upon my life owned by any corporation or owned by any partnership of which I am a partner);

B. any registered retirement savings plan, registered retirement income fund, annuity, pension, or superannuation benefits payable to any person as a result of my death;

C. any gift made by me in my lifetime; and

D. any benefit arising by survivorship,

and my Trustee may pay these taxes whether they are imposed by the law of this jurisdiction or any other, and my Trustee may prepay or delay payment of any taxes or duties,"

(2020 CLEBC Wills and Personal Planning Precedents, 8.4)

c) Items-in-Kind

The will-maker may wish to make a specific bequest of a personal article. The appropriate item must be listed.

SAMPLE: “(a) to deliver my [article 1] to my [relationship] [article 1 recipient full name], if [they] are alive on the date that is 5 days after the date of my death, and if [they] are not alive on that date, add [article 1] to the residue of my estate.

“(b) [to pay [all/a specified portion] of the packing, freight, and insurance costs my Trustee decides [are/is] appropriate for delivering any items of the Articles as required by this will].” (2020 CLEBC Wills and Personal Planning Precedents, 11.8)

d) Cash Legacies

The will-maker may wish to make a specific bequest of cash legacies.

SAMPLE: “to pay:

(i) $ [amount] without interest to [name of recipient of cash gift] of [address], if [they] are alive on the date that is 30 days after the date of my death, and if [name of recipient of cash gift] is not alive on that date, that amount will form part of the residue of my estate;” (2020 CLEBC Wills and Personal Planning Precedents, 13)

If the client feels that their estate may not be large enough to pay all desired legacies, the client may wish to express an order of priority for the legacies. See 2020 CLEBC Wills and Personal Planning Precedents, 13.4.

e) Gifts to Spouse

In the event of a common accident where both spouses die, and it cannot be determined who died at what particular time, then each spouse’s estate passes as if they had outlived the other spouse (WESA, s 5). In the case of a joint tenancy, the property is treated as if it were held as a tenancy in common (WESA, s 5). These presumptions will be subject to contrary intention made in a will or other applicable instrument. Also, if a spouse does not survive the deceased spouse by five days, that person is deemed to have predeceased the deceased spouse (WESA, s 10). Disposition of life insurance is dealt with differently under the Insurance Act, RSBC 2012 c 1, ss 59-64.

To ensure that property passes according to the will-maker’s intention, a 30-day survivorship clause should be added, which requires the surviving spouse to survive the will-maker by 30 days (or such period as the will-maker wishes). A sample clause when the deceased spouse leaves the residue to the surviving spouse is:

SAMPLE: “(a) to give the residue of my estate to [residue name], if [they] are alive on the date that is 30 days after the date of my death;

(b) if [residue name] is not alive on the date that is 30 days after the date of my death, [specify what to do with residue].” (2020 CLEBC Wills and Personal Planning Precedents, 15.4)

If the will-maker is not giving a residue but the entire estate, the appropriate words would be “to give all my assets, both real and personal, of whatsoever kind and wheresoever situate, to…”

Because of the presumption that a reference in a will to a relationship is presumed to refer to those that are legally married, a “common-law spouse” should not be referred to as “my husband” or “my wife” but should be identified by name, such as, “my partner, [name].”

f) Gifts to Children

If the will-maker’s spouse does not survive the will-maker, often the will-maker will want to leave the estate to their children. A will-maker must decide whether they wish to divide the estate between only those children alive at the will-maker’s death, or if they wish to benefit the issue of any pre-deceased child as well (i.e. grandchildren).

SAMPLE: “If [spouse’s name] is not alive on the date that is 30 days after the date of my death, to divide the residue of my estate in equal shares [between/among] those of my children who are alive on the date that is 30 days after the date of my death, except if [either/any] child of mine has died before that date and one or more of their children are alive on that date, that deceased child of mine will be considered alive for the purposes of the division and the share creates for that deceased child of mine will be divided equally among those of their children who are alive on that date;” (2020 CLEBC Wills and Personal Planning Precedents, 15.8)

[The will should then go on to detail the terms upon which the shares will be distributed to the beneficiaries: e.g. the age at which the trustee should pay out the shares.]

If the children are under 19, usually a trust should be created for them until they reach majority age. See Part Three-b, Gifts to Children, immediately below. If a trust needs to be created for a minor child, the student should refer the client to a private lawyer.

5. Part Three

a) Implied and Express Powers of Executor

The third part of a will deals with the administration of the estate. This section outlines the Trustee’s general powers and responsibilities: trusts for minors, payments for minors, and valuation of the estate. The only implied power of an Executor to deal with assets is a power to “call in” and sell the assets which are not specifically gifted in the will. Therefore, a well-drafted will should involve several express powers so that the Executor can efficiently deal with the assets of the estate.

NOTE: There is an important distinction that must be made between the duties and powers of the Executor. On the one hand, duties are non-discretionary. They dictate a course of action that the Executor must take according to the intentions of the will-maker as set out in the will. On the other hand, powers are discretionary. They allow the executor to make decisions within a range of possibilities according to the intentions of the will-maker.

b) Gifts to Children

As a general rule, anyone named in a will can inherit under that will. However, minors cannot sign a valid receipt for their share in an estate. In practical terms, this means that minors must wait until they reach the age of majority to inherit under a will. The parent, guardian, or other trustee for the benefit of the child would hold title to any property until the child reaches age 19. When property is held by a trustee in trust for a child under the age of 19, the trustee is deemed to have the power to encroach and may, at their discretion, apply all or part of the income to which the child may be entitled towards the maintenance and/or education of the child (Trustee Act, RSBC 1996, c 464, s 24).

The clause creating the trust should:

• Create the trust for the benefit of the children;
• Set out a discretionary schedule of payments;
• Grant a power of encroachment and/or a direction to pay income;
• Leave a deceased beneficiary’s share to their children if they die before reaching the age of vesting. If they have none, then the trust should direct who receives the remainder of the share.
• Give the Trustee discretion to invest outside the Trustee Act, only if they are acquainted with business matters.

SAMPLE: “If any person who becomes entitled to any part of my estate is under the age of majority, and I have not specified terms in this Will on which my Trustee is to hold that part, I direct my Trustee to hold that part, and:

(a) pay or use so much of the income and capital of that person’s part of my estate as my Trustee decides for that person’s benefit until that person reaches 19;

(b) add any income not paid or used in any year to the capital of that person’s part of my estate;

(c) give that person what remains of that person’s part of my estate when that person reaches 19, but if that person dies before reaching 19, give what remains of that person’s part of my estate to that person’s estate; and

(d) at any time my Trustee decides, my Trustee may give some or all of that part of my estate to that person’s parent or guardian as trustee [, other than [name of person to exclude, if any,]] to receive and hold that part of my estate for that person’s benefit on the same terms as set out in paragraphs (a), (b) and (c) above. When the parent or guardian receives that part of my estate, my Trustee is discharged in connection with that part of my estate and need not inquire about how it is used.”

(See 2020 CLEBC Wills and Personal Planning Precedents, 20.4.)

The intended beneficiaries (i.e. the children) need not be alive at the time of execution to be included if a general term such as “children” is used.

Section 153 of WESA provides that where there is no trustee in the estate, money bequeathed to a minor is paid to the Public Guardian in trust for that minor. The Infants Act, RSBC 1996, c 223 (s 14(1)) states that, subject to the terms of a trust set up in a will, the Public Guardian may authorize payment of all or part of the trust for the maintenance, education or benefit of the infant.

If part of an estate is distributed to a minor, the Executor or Administrator of an estate is left open to an action by the minor (upon reaching the age of majority) to repay all the monies distributed in a manner not in accordance with the terms of the will.

If a will-maker wants a clause to limit the Trustee’s investment powers, a wills precedent book must be consulted. If any of the persons the will-maker wishes to benefit are stepchildren, the will should clearly identify that person by name rather than merely by relationship (i.e. “children”). Stepchildren are not considered children under WESA and should be referred to by name. Adopted children, however, are for all purposes the children of the adopting parents, and not the legal children of the natural birth parents, per section 3 of WESA.

It is possible for a minor to receive monetary gifts before they reach the age of 19. However, before probate will be granted, the Public Guardian and Trustee of BC must be notified. The Trustee’s foremost concern is protecting the child, and it is in the Trustee’s discretion whether or not a gift will be given. Factors such as the amount of the gift and its intended purpose will be considered.

c) Valuation of Estate

This section of a will outlines the Trustee’s general power and discretion to fix the value of the estate.

NOTE: While the Trustee has a general discretion to fix the value of the estate, there must be some factual basis to support this valuation. The Trustee has a fiduciary responsibility to act to the benefit of the estate and the beneficiaries.

SAMPLE: “When my Trustee divides or distributes my estate, my Trustee may decide which assets of my estate to allocate to any share or interest in my estate (and not necessarily equally among those shares or interests) and the value of each of those assets. Whatever value my Trustee places on those assets will be final and binding on everyone interested in my estate.” (2020 CLEBC Wills and Personal Planning Precedents, 20.8)

6. Part Four

The fourth part of a will is concerned with the elimination of potential beneficiaries, funeral directions, and finally, execution and attestation.

a) Eliminating Potential Beneficiaries

See Section VI: Wills Variation Claims for more information regarding why eliminating potential beneficiaries can be problematic.

b) Funeral Directions

These directions are not binding, but the Executor must arrange for a funeral that is fitting having regard to the will-maker’s position and manner of life. Prudent practice is to advise the will-maker that they should make these wishes known to the Executor.

SAMPLE: “I want my remains to be [buried/cremated]. I hope that if any funeral or memorial service is held as a result of my death it will be conducted with unostentatious simplicity.” (2020 CLEBC Wills and Personal Planning Precedents, 21.3)

c) Execution and Attestation Clause

The execution and attestation clause should not be on a page of its own. It must follow the final clause of the will on the same page. This is required to prevent the insertion of additional clauses after the will is signed. Always have the will-maker sign it at the end of the will in the presence of two witnesses who do not have an interest in the estate (i.e. is not a beneficiary or executor) and are not the spouses of any individual who has an interest in the estate; there must be room for the two witnesses’ signatures (see Section III.D: Executing the Will and Section III.E: Attesting the Will).

SAMPLE:

“I have signed this Will on [month, day, year].

We were both present, at the request of [will-maker's name], and we were both 19 years of age or older, when this Will was read to [will-maker's name]. [Will-maker's name] seemed to thoroughly understand it and approve its contents. We remained present while [will-maker] then signed this Will with the name of [will-maker name]. We then signed as witnesses in the presence of both [will-maker name] and [signor] and in the presence of each other.

________________________ Signature of Witness ________________________ Printed Name _______________________ Address (Street) _______________________ City _______________________ Occupation _______________________ Signature of Witness ________________________ Printed Name ________________________ Address (Street) ________________________ City ________________________ Occupation"

________________________ [full name of will-maker]

(2020 CLEBC Wills and Personal Planning Precedents, 22.35)

NOTE: Execute only the original will. Copies should not be signed by the will-maker and witnesses but can be photocopied or have facsimile signatures and dates inserted. Students should write or stamp the word “copy” on all photocopies.

NOTE: Ability to electronically witness a will. Ministerial Order No. M161 was issued in response to the COVID-19 pandemic, and the order allows for temporary electronic witnessing of wills starting on March 18, 2020. Since then, Bill 21 has been tabled, which will give full validity to electronically witnessed wills going forward. Bill 21 is not yet fully in effect, so readers are advised to seek out the most recent updates. See Section III.E.2: Signatures of Witnesses for more information.

D. Executing the Will

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.

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. Electronic Wills

It will be possible to satisfy the writing requirement if the will is in electronic form. Section 37(4) says that an electronic will is a will for the purposes of this act. This means that wills can be signed and stored electronically. The following are two scenarios of how an electronic will may be executed and witnessed: The will-maker and the two witnesses are physically in the same room. They share an electronic drive that displays a PDF of the will. The will-maker signs the PDF will on the electronic device in the physical presence of the two witnesses, and then each of the witnesses sign the PDF in the physical presence of the will-maker. Alternatively the will-maker and the two witnesses are all in different physical locations but are all in the same video conferencing “room”. For example, a Zoom room or a MS Teams room. The will-maker uses the screen sharing function on the video conferencing platform to share a live display of the will on their screen with the two witnesses. The will-maker then signs the will by electronic signature. The first witnesses then does the same, and the second witness then does the same. After the electronic will is signed, it is recommended that the will-maker immediately save a complete signed electronic copy of the will as a PDF, lock the PDF from further editing and secure it in a secure location. If a client seeks to execute or have their electronic will witnessed, please consult with the supervising lawyer prior to taking instructions or agreeing to help the client.

3. Beneficiary's Debt to Estate

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.”

E. Attesting the Will

1. Signature of Will-Maker

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)).

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.

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.

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. Signatures of Witnesses

a) Generally

The will-maker must make or acknowledge the signature in the joint presence of two attesting witnesses present when the will is signed (WESA, s 37) A beneficiary of the will or the will-maker’s spouse should never witness the will, as it may void the gift they receive through the will (WESA, ss 40, 43). It will be sufficient if the will-maker has made their signature in the joint presence of the witnesses. If they have not, the will-maker must acknowledge the signature in the witnesses’ presence, as it becomes a question of fact that witnesses must have actually seen or been able to see the signature when the will-maker acknowledged it (see Re Schafner, (1956) 2 DLR (2d) 593 (NSSC)).

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

Any person 19 years of age or older may be a witness (WESA, s 40(1)).

A will is not invalid if the only reason for invalidity is that a witness is legally incapable of proving the will either at the time the will was signed by the will-maker or afterwards. However, if the witness is not 19 years old or older at the time the will was signed by the will-maker, then the will is invalid.

c) Gifts to Witnesses

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 that 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.

F. Court’s Power to Cure Deficiencies and Rectify Wills

Section 58 of WESA gives the court the power to recognize any “record” that gives effect to the testamentary disposition of the deceased, even if it does not comply with the formalities of WESA and/or the common law. This means that the court can give effect to a document or other record that contains a testamentary disposition. As such, individuals should be cautious about drafting documents that may be construed as a testamentary disposition.

The leading case on section 58 is Estate of Young, 2015 BCSC 182, in which the court considers case law from Manitoba with a similar provision (section 22 of The Wills Act, CCSM W150) in order to interpret section 58.

The court observes that the curative power of section 58 is very fact-sensitive and that the purpose of the section is to cure formal invalidities and not to be used to uphold a will that is invalid for any substantive reasons. For example, the court can uphold a will that does not adhere to the format that a will should take under WESA; however, it cannot uphold a will that is deemed invalid because of testamentary incapacity or undue influence.

There are two principal issues for consideration that the court takes into account when assessing whether an impugned document should be recognized:

1. Whether the document is authentic.
2. Whether the non-compliant document represents the deceased’s testamentary intentions. The court then goes on to specify: “the key question is whether the document records a deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death.”

The court includes a non-exhaustive list of factors that may be taken into consideration when assessing a document:

• the presence of the deceased’s handwriting;
• witness signatures;
• revocation of previous wills;
• funeral arrangements;
• specific bequests; and
• the title of the document.

Although section 58 gives the court broad powers to give effect to the intentions of the will-maker, this power does have limitations. Therefore, every effort should be made to follow the proper procedure when drafting a will in order to avoid future complications. As the court notes in Estate of Young, 2015 BCSC 182, “[w]hile imperfect or even non-compliance with formal testamentary requirements may be overcome by application of a sufficiently broad curative provision, the further a document departs from the formal requirements, the harder it may be for the court to find it embodies the deceased’s testamentary intention.” See also Levesque Estate, Re, 2019 BCSC 927, and Hadley Estate, Re, 2017 BCCA 311.

Section 59 of WESA gives the courts the power to rectify an error or omission in a will in order to give effect to the intentions of the will-maker. Extrinsic evidence is permissible to determine the intent of the will-maker.

This is a significant provision, as it allows the courts to consider evidence that would otherwise not be admissible in order to determine the intent of the will-maker.

Revocation of wills is governed by section 55 of WESA. These sections outline the only ways in which a will may be revoked. Section 56 of WESA provides that if a will-maker gifts, appoints as an executor, or confers power to a person who subsequently ceases to be the spouse of the will-maker under section 2(2) before the will-maker’s death, only that gift, appointment, and/or conferment is revoked, not the entire will. The gift to the ex-spouse must be distributed as if they die before the will-maker. The application of section 56 of WESA is subject to any contrary intention in the will.

G. Filing a Wills Notice

After the will is complete, a Wills Notice should be filed with the Department of Vital Statistics in Victoria (WESA, at s 73). The purpose of the notice is to record the existence and location of the will and make it easier to find the will after the will-maker’s death. A will-maker is not required by law to file a Wills Notice. However, it is recommended as a wills search must be undertaken by the Executor or Administrator before the Grant of Probate or Grant of Administration are issued.

A Wills Notice should be filed whenever a will is made, revised, revoked or moved or whenever a codicil is executed. In order to file a Wills Notice, the will-maker must have the following information:

• Legal name and date of birth;
• Place of birth;
• Date the will was signed;
• Location of the will; and
• The date the note was filed with the Vital Statistics Agency.

There are three ways of filing a Wills Notice: either online, by mail, or in person. All three methods require a $17.00 charge for filing, payable to the Minister of Finance. Forms are available from BC Government Forms Finder, website: https://www2.gov.bc.ca/gov/content/home/forms-a-z. If filing by mail is preferred, then the VSA 531 form must be completed and mailed to Vital Statistics Agency, PO Box 9657 Stn Prov Govt, Victoria, BC V8W 9P3.

Finally, the VSA 531 form can be submitted in person to any Service BC Counter. Locations can be found at: www.servicebc.gov.bc.ca.

If a will is made with LSLAP, the forms are also on file in the LSLAP office. A copy of the notice should be made and the original notice should be sent to the Vital Statistics Agency. The copy should be either kept with the will or with the personal representative. Do not send a copy of the will. Students may not sign the notice as the client’s solicitor. The client must sign the form.

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