Case of the Invalid Will: When the Note Becomes a Valid Will

will

It’s surprising to note that despite the ease of getting a last Will today, more than half of Canadian adults (at 56 percent) fail to secure a signed one, with 29 percent of them unsure how to begin or believe they cannot afford one.

In addition to legal fees, this oversight can cause bitter family feuds or court fights between siblings and/or spouses. A proper Will would have averted all of this.

In 2014, the BC Notaries revealed that 55 percent of British Columbians have no Will.

To be a valid Will in British Columbia, three requirements must be met by testamentary document: 

  1. It must be in writing; 
  2. It must be signed by the person making it; and 
  3. It must be signed by two or more “witnesses.”

When a person dies, the courts of British Columbia determine if that person died with a will or without it, this is defined as a person dying testate or intestate respectively

So what happens when a person dies and the Will is “signed” by the testator (the person who made the document), but not by two witnesses? 

How Can BC Courts be Involved in case of Intestate Deaths

In accordance with the Wills, Estates, and Succession Act (WESA), the courts have the authority to rescind an invalid Will if it does not meet the aforementioned standards. The courts can also “fix” the shortcomings and validate the Will. 

A judge makes a curative provision to an invalid Will if they are convinced that the testamentary document was authentic and accurately reflected the decedent’s wishes at the time of their death and if the person has the mental capacity to make the testamentary document.

The Handwritten Note of Laura Armstrong

A British Columbia woman, Laura Armstrong, died without a will and was found dead in her car with a hand-written note in her pocket detailing her final wishes for her estate. 

The court had to decide whether this note could be accepted as a valid Will, or whether Laura had died intestate. In this case, they found out that the note was indeed written by the owner, as confirmed by one of her brothers, her spouse, and existing bank records. 

There was no evidence to suggest that it wasn’t written by this woman herself, thus the judge accepted it, curing the Will as an authentic document.

The judge highlighted Armstrong calling the letter her will, her intent for the note to be discovered after her death, and the note is dated the same day she went missing and near to her death. Aside from that, the language she used conveyed certainty and there was no allegation of improper influence or inability.

The Court of Appeal of British Columbia stated that the handwritten note was “a clear expression of intention” and found that the handwritten note was indeed a Will.

Conclusion

The Armstrong case provides some clarity in the law. When a person signs a Will and it is not witnessed by two people (in addition to himself), the courts look at all of the circumstances surrounding the Will-making to see if the will-maker intended to make a valid, testamentary document. 

However, there are other cases where a handwritten note did not reflect the decedent’s final and fixed intention to overturn a previously drafted and notarized Will. It really is a case-to-case basis, which the courts will be left to decide if a person dies intestate. 

This is why you make it simpler for yourself and your descendants if you secure a valid Will. You can manage your hard-earned estate even when you pass away, secure your family, and make sure your loved ones would not have to go through the stress of lengthy court proceedings that may or may not go in their favour. While you still can, talk to your lawyer and secure a Will today. 

Are you looking for a reliable Wills and estates lawyer in Langley? Dreyer Davison Family Lawyers provides comprehensive family law services in the Fraser Valley, with over 90 years of combined expertise. We have diverse experience across family law, wills and estates, and residential conveyancing. Reach out to us now to find out how we can assist you.

Facebook
Twitter
LinkedIn

Cloud Tags

Search

Categories

Categories

Related Posts