BC has very rigid rules that govern what makes a will eligible to be deemed valid. These are:
- The will can be deemed to be a valid will when it is signed
- The will can be deemed to be a valid will when it is witnessed by two people or more
- The will can be deemed to be a valid will when it is in writing
There are certain cases wherein invalid documents can still be ruled valid, for as long as the testator’s intentions were clear.
The term ‘holograph wills’ may seem familiar, at the very least. It is an actual legal document: holograph wills are handwritten and signed by the will-writer. However, they are either not witnessed at all or simply unsigned by any witnesses that were present. As it falls outside BC’s strict qualifications for a valid will, having a holograph will may seem to render matters confusing and/or futile.
In truth, there are particular scenarios wherein the document can end up becoming a valid will down the line.
Holograph wills typically come about in the moments before a person dies so that they can jot down intentions of estate distribution. This happens as a result of them being unwilling or unable to make a will that is valid prior. When a person does not leave a valid will, the courts will attempt to cure documents that present final intentions prior to dying intestate (without a will that is valid).
For some provinces, a holograph will needs no curing; it can stand alone and be considered valid. A classic example comes from Saskatchewan, specifically Harris Estate (1948). A farmer had written a holographic will on his tractor’s fender after he had been pinned underneath it. Using a pocket knife, he etched the following words onto the fender: “In case I die in this mess I leave all to the wife.”
The farmer had not just written his intentions on the fender, but also signed it. The courts ruled it to count as a valid will, as it met a holograph will’s requirements according to Saskatchewan’s estate laws.
People living in BC, however, have no such luck. Holograph wills are not recognized under WESA (the Wills, Estates and Succession Act). Had the case of the farmer leaving a holographic will on his fender happened in BC, the will would be considered invalid since none of the elements of a valid will were present. That said, having a say in estate distribution is not strictly tied to having a valid will.
BC courts have the capability to cure testamentary documents that are not legally valid into a will. The WESA’s s.58 has particular details and instructions on how and when a testamentary document could be cured in order to become a person’s valid final will and testament.
Holograph wills might sound like a whimsical term, but it is a very real and very legal one. It refers to a will that was handwritten and signed by the will-writer but had no witnesses at the time. Some states recognize them as valid as is; others will need to cure testamentary documents.
Are you looking for assistance from a wills and estates lawyer? Contact Dreyer Davison Family Lawyers today! We’re committed to preserving the best interests of families across the Lower Mainland and the Fraser Valley.