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Dangers of the “Back of the Napkin” Will

By Wills & Estates Team (posts)

The laws in British Columbia regarding wills changed dramatically in March of 2014, when the new Wills, Estates and Succession Act (“WESA”) came into force. One of the most significant changes is in section 58 of WESA.

Prior to section 58, the law recognized as valid only those wills that were executed in perfect compliance with the various requirements, including that two witnesses be present when the testator signs the will, etc…. There was no room for the Court to declare a will to be valid that did not comply with all the requirements, even where it was clear that the person making the document intended it to be his or her final will.

Section 58 of WESA now permits the Court to fix or cure technical defects in testamentary documents (i.e. documents that appear to be “will-like” in nature).

This new power will have a significant (and welcome) impact where the circumstances make it clear that the will-maker intended to make a new will, but some hiccup in the process (such as a witness wandering out of the room at the wrong time) resulted in the will being technically invalid. In those cases, we expect that the Courts will now forgive the technical defect and uphold the document as a valid will.

In more ambiguous circumstances, however, the curative powers of section 58 may complicate the probate process. The classic situation is where a person jots down an informal will on the back of a napkin. In the digital age, however, the potential for these types of wills is endless – text messages, emails, draft “new wills” saved on a computer or smart phone, and so on.

Because of section 58, the executor of that person’s estate will now have to search for and bring to the attention of the Court such text messages, electronic documents, or notes, and perhaps have a full hearing in front of a judge, leading to considerable extra cost.

Legal and financial professionals should be aware of section 58 of WESA and advise their clients to be very careful about creating any documentation that tends to alter what is in their existing wills. If they do wish to make a “draft” new will or something along those lines, it is paramount that they make their intentions 100% clear – scrawl “DRAFT” on every page if it is still a draft, and get it properly witnessed if it is now a finished product.

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