There are many formal requirements for a testator to make a Will. A failure to observe such requirements may invalidate the Will or certain portions of the Will.
Example: Witnesses Cannot Receive Gifts Under the Will
On example is where someone witnesses a will which leaves that specific witness a gift. This gift is invalid in the Will.
That said, it is possible for the beneficiary/witness to apply under the Wills Estates and Succession Act to cure the mistake and apply to restore the gift. If you find yourself in this situation, please phone our office immediately for assistance.
Example: A Handwritten Document Purporting to be a Will
In order for a will, handwritten or not, to be valid in BC it must satisfy three requirements:
1. The will must be in writing.
2. The will must be signed at the end,
3. The will must be properly witnessed.
Prior to the Wills Estates and Succession Act coming into force in 2014, if a Will was missing one of these key elements, for example, if it was not witnessed, the courts would invalidate the Will. While the courts could invalidate a broken Will, they were not, prior to 2014, able to fix a defective will.
If a Will is defective can the courts fix it?
The Wills Estate and Succession Act allows the courts to fix deficiencies in a defective Will and pronounce a Will valid.
What must be done for a BC court to fix an invalid will?
To invoke the powers to fix an invalid will, the court must be satisfied with two things:
1. The court must be satisfied that the document is authentic. In other words, was the document prepared by the deceased?
2. Does this document truly represent the intentions of the deceased? In other words, did the person making the document mean for it to be their final Will?