SECTION 58 OF WESA: What if a Will is not properly signed or witnessed?

A Will is an important document. It allows a person to set out what they want to happen to their affairs after they die. The Will speaks for a person after that person is no longer alive to speak for themselves. The law has long held that a Will must formally comply with various technicalities, recognizing the importance of a Will as an important and unique type of document. In particular, to be valid in British Columbia, a Will must be: (1) signed by the person, and (2) witnessed by two other people.

But what happens if the Will is not signed by the person, or if there were not two witnesses?

Previously, there was little that could be done. The court had no discretion to dispense with any of the formalities. A Will that failed to comply with the formalities was invalid. However, British Columbia has recently passed new laws to allow a court to “cure” a problem with a Will. In other words, a Will may now be valid, even though the Will was not properly signed or witnessed.

When deciding whether to cure a deficiency in a document or record purporting to be the Will of a deceased person, the court looks at two factors: (1) authenticity, i.e. whether the record was actually made by the deceased person; and (2) whether or not the record reflects the fixed and final testamentary intention of the deceased person.

Evidence of authenticity may include:

(a) where the document was found;
(b) comparisons to other reliable documents written by the deceased;
(c) evidence to demonstrate a signature of the deceased was their usual signature (such as a driver’s license or a passport);
(d) evidence relating to the language the deceased was able to write in; and
(e) evidence of the deceased’s relationships to the beneficiaries in the document (to demonstrate whether there is a rational basis for the disposition).

Evidence of fixed and final testamentary intention will likely come from the record itself, and may include:

(f) the presence of the deceased’s signature;
(g) the presence of the deceased’s handwriting;
(h) the presence of witness signatures;
(i) the presence of revocations of previous Wills;
(j) the presence of funeral arrangements;
(k) the presence of specific bequests; and
(l) the title of document.

Other evidence of fixed and final testamentary intention may include where the document was left, if the document accorded with the deceased’s other statements and actions, the type of paper the document was written on (i.e. scrap paper or something more formal looking), the timing of the making of the record, and a rational basis for making the gifts based on the relationship of the deceased to the beneficiaries.

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