Making a Will in British Columbia
Table of Contents
What is a Will?
A will is one of the most important documents when it comes to creating a complete estate plan.
Your will is a set of instructions that outlines how your property is to be distributed after you pass away. It is a legally binding document.
Among other things, a will allows you to:
- appoint a personal representative, also known as, an executor to manage and distribute your estate after you pass away;
- appoint a guardian to take care of your children;
- create a trust and appoint a trustee to manage the trust until your children reach a certain age;
- leave specific gifts to specific people;
- make donations to charity; and
- specify any funeral wishes.
Who can make a Will?
Anyone who is 16 years of age or older and who is mentally capable of doing so may make a will in British Columbia.
How to make a valid Will in British Columbia?
In British Columbia, the Wills, Estates and Succession Act, sets out strict formalities that must be followed to create a valid will. Failure to follow the strict formalities will lead to a will being declared invalid or will require a costly and time-consuming court application to fix any deficiencies.
Per section 37 of the Wills, Estates, and Succession Act, to be valid, a will must be:
- in writing;
- signed at its end by the will-maker, or the signature at the end must be acknowledged by the will-maker as the will-maker’s signature, in the presence of 2 or more witnesses present at the same time, and
signed by 2 or more of the witnesses in the presence of the will-maker.
Recent amendments to the law in British Columbia allow for a will to be signed digitally and witnessed virtually.
Who can witness a Will in BC?
In British Columbia, both witnesses to a will must be 19 years or older.
Neither of the witnesses should be a beneficiary, the spouse or common-law partner or a beneficiary, or a guardian (if there are minor children) named in the will.
It is best practice to also ensure that no one named as an executor or trustee, or a spouse of any of them, acts as a witness to the signing of the will.
Recent amendments to BC law allow a will-maker to sign a will in the electronic presence of witnesses and for the will-maker and witnesses to sign by electronic signature.
Wills Variation by Spouse or Children
If a will-maker dies leaving a will that does not make adequate provision for the maintenance and support of the will-maker’s spouse (married or common-law) or children, the spouse or children can make a court application to vary the will.
The Supreme Court of British Columbia has the authority to vary any will and make any order that the court thinks is adequate, just, and equitable in the circumstance.
What happens if you die without a Will in BC?
When a person in British Columbia dies without a will, that person is said to have died “intestate.”
This means that their property will be distributed based on complicated intestacy laws as set out in the British Columbia Wills, Estates and Succession Act.
Practically speaking, if you die without a will in British Columbia:
- your assets may pass to unintended beneficiaries;
- assets that could have passed to your spouse on a tax-deferred basis may not do so and might result in unplanned tax consequences for the estate; and
- if you have not appointed a guardian for your children and there are no surviving guardians, the Ministry of Child and Family Development will become the personal guardian of your children.
Surveys throughout the years have consistently shown that almost half of Canadians do not have a will. Having a well-drafted and thought-out estate plan is something that all Canadian adults should have in place. There is a common misconception among the general public that wills and estate plans are costly to make or that only the elderly need wills.