Difference between revisions of "Making and Executing a Will (16:III)"

{{REVIEWED LSLAP | date= August 9, 2021}}

The will-maker must have the requisite testamentary capacity. No person of unsound mind, who lacks testamentary capacity, is capable of making a valid will. Testamentary capacity is defined through the common law, not statute. The basic test is found in ''Banks v Goodfellow'', (1870) LR 5 B 549 (QB) at para 569 [''Goodfellow'']; for a recent application of this test, see ''Nassim v Nassim Estate'', [2022] BCSC 402 at para 41 [''Nassim''].

In ''Nassim'', the courts also outline a more “modern” form of the ''Goodfellow'' test that was quoted in ''Laszlo v Lawton'', 2013 BCSC 305 at para. 188 ''[Laszlo],''  "The testator must be sufficiently clear in his understandings and memory to know, on his own, and in a general way (1) the nature and extent of his property, (2) the persons who are the natural object of his bounty and (3) the testamentary provisions he is making; and he must moreover, be capable of (4) appreciating these factors in relation to each other, and (5) forming an orderly desire as to the disposition of his property…"  

''Laszlo'' at para 189. sets out the relevant time for assessing capacity: when the will-maker gave instructions and when the will maker-executed the will.

The rules regarding the burden of proof in relation to testamentary capacity were set out by the Supreme Court of Canada in ''Vout v Hay,'' [1995] 2 S.C.R. 876 [''Vout'']. Essentially, if a will is duly executed in accordance with the formal statutory requirements after being read by a testator who appears to understand the will, it is presumed that the testator possessed the requisite capacity and knew and approved the contents of the will.  This presumption may be rebutted where “suspicious circumstances” or undue influence exist (see below).

To challenge a will on the grounds of undue influence, the asserting party must show that the will does not represent the will-maker’s true intentions due to the coercion. If this can be shown, undue influence is presumed. The party that wishes to defend the will may rebut this presumption by showing that the will was a result of the testator’s own “full, free and informed thought”. See ''[https://www.canlii.org/en/bc/bcsc/doc/2010/2010bcsc64/2010bcsc64.html?autocompleteStr=Stewart%20v%20Mclean%2C%202010%20BCSC%2064&autocompletePos=1 Stewart v Mclean]'', 2010 BCSC 64. Factors that can assist with rebutting the presumption includes proof that:  

::a) No actual influence was used or there was a lack of opportunity to influence;  

 

 

 

Notwithstanding section 52 of ''WESA'', an individual challenging a will on the basis of undue influence should have sufficient evidence to establish actual undue influence – in challenging the validity of a will, it may be insufficient to simply point to a relationship where there was a potential for the testator’s domination or dependence, without more. An allegation of undue influence is a serious allegation which should not be made lightly. See ''[https://www.canlii.org/en/bc/bcsc/doc/2018/2018bcsc1032/2018bcsc1032.html?autocompleteStr=Ali%20v%20Walter%20Estate%2C%202018%20BCSC%201032&autocompletePos=1 Ali v Walter Estate]'', 2018 BCSC 1032, ''[https://www.canlii.org/en/ca/scc/doc/1991/1991canlii69/1991canlii69.html?autocompleteStr=Geffen%20v%20Goodman%20Estate%2C%20%5B1991%5D%202%20SCR%20353&autocompletePos=1 Geffen v Goodman Estate]'', [1991] 2 SCR 353, ''[https://www.canlii.org/en/ca/scc/doc/2017/2017scc61/2017scc61.html Cowper-Smith v Morgan]'', 2016 BCCA 200.

Suspicious circumstances may arise where a person who prepares a will also takes a benefit under it, though this is not exhaustive of all circumstances that raise a suspicion. The suspicion is that the will-maker did not know or approve of the contents of the will, and this suspicion must be removed before probate will be granted (see ''[https://www.canlii.org/en/ca/scc/doc/1934/1934canlii13/1934canlii13.html?autocompleteStr=Riach%20v%20Ferris%2C%20%5B1934%5D%20SCR%20725&autocompletePos=1 Riach v Ferris]'', [1934] SCR 725; see also more recent applications in ''[https://www.canlii.org/en/bc/bcca/doc/1989/1989canlii2923/1989canlii2923.html?autocompleteStr=Clark%20v%20Nash%2C%20(1989&autocompletePos=1 Clark v Nash]'', (1989) 61 DLR (4th) 409 (BCCA) and ''[https://www.canlii.org/en/bc/bcsc/doc/1997/1997canlii2935/1997canlii2935.html?autocompleteStr=Johnson%20v%20Pelkey%2C%20(1997)%2036%20BCLR&autocompletePos=1 Johnson v Pelkey]'', (1997) 36 BCLR (3d) 40 (SC)).  

::a) circumstances surrounding the preparation of the will,  

 

::b) circumstances tending to call into question the capacity of the testator, or  

 

::c) circumstances tending to show that the free will of the testator was overborn by acts of coercion or fraud.

A will-maker may wish to appoint a guardian for their children during their age of minority (see ''Family Law Act'', SBC 2011, c 25 s 53 (1) (a)). Financial assistance should be provided to the guardian to cover the costs of raising the children. This arrangement is made with the Trustee. The guardian must be prepared to accept the position and should be consulted beforehand.  

For more information, see '''Chapter 3: Family Law'''.

:(2020 CLEBC ''Wills and Personal Planning Precedents'', 8.4)

:'''SAMPLE:''' “(a) to deliver my [article 1] to my [relationship] [article 1 recipient full name], if [they] are alive on the date that is 5 days after the date of my death, and if [they] are not alive on that date, add [article 1] to the residue of my estate.

:'''SAMPLE:''' “(a) to give the residue of my estate to [residue name], if [they] are alive on the date that is 30 days after the date of my death;  

See Section '''VI: Wills Variation Claims''' for more information regarding why eliminating potential beneficiaries can be problematic.  

'''The execution and attestation clause should not be on a page of its own. It must follow the final clause of the will on the same page'''. This is required to prevent the insertion of additional clauses after the will is signed. Always have the will-maker sign it at the end of the will in the presence of two witnesses who do not have an interest in the estate (i.e. is not a beneficiary or executor) and are not the spouses of any individual who has an interest in the estate; there must be room for the two witnesses’ signatures (see '''Section III.D: Executing the Will and Section III.E: Attesting the Will''').

:'''NOTE: Ability to electronically witness a will.''' Ministerial Order No. M161 was issued in response to the COVID-19 pandemic, and the order allows for temporary electronic witnessing of wills starting on March 18, 2020. Since then, ''Bill 21'' has been tabled, which will give full validity to electronically witnessed wills going forward. ''Bill 21'' is not yet fully in effect, so readers are advised to seek out the most recent updates. See Section III.E.2: Signatures of Witnesses for more information.

According to ''[https://www.canlii.org/en/bc/bcsc/doc/2017/2017bcsc272/2017bcsc272.html?autocompleteStr=Re%20Johnston%20Estate%2C%202017%20BCSC%20272&autocompletePos=1 Re Johnston Estate]'', 2017 BCSC 272, the rule in ''Cherry v Boultbee'', 41 ER 171 applies in Canada. This means that the beneficiary is required to bring their debts towards the estate into account, even if the debt claim would otherwise be statute-barred by the ''Limitations Act''. ''Re Johnston Estate'' states that “the purpose of the rule was to prevent a beneficiary who owed money to an estate from receiving more than their fair share of the estate.”

'''There must be a signature or a mark on the will intended to be a signature'''. Thus, something less than a signature, e.g. initials, will be sufficient where it is intended to represent the name and to be a signature (''In the Goods of Chalcraft'', [1948] 1 All ER 700; ''[https://www.canlii.org/en/nb/nbqb/doc/1988/1988canlii7832/1988canlii7832.html?resultIndex=2 Bradshaw Estate, Re]'', [1988] NBJ No 709). Where necessary, the will-maker’s hand may be guided by another person; however, this requires the will-maker’s clear direction or consent (''Re: White'', (1948) 1 DLR 572 (NS App Div)).

'''Section 37(1)(b) of ''WESA'' requires the signature be at the end of the will'''. Section 39(2) defines when a will is deemed to be signed at the end and provides that a disposition made below or after the signature is of no effect. Case law has taken a liberal view of these requirements, finding a signature not at the end to have been intended to be at the end (''In the Goods of Henry Hornby'', [1946] All ER 150 and ''[https://www.canlii.org/en/mb/mbqb/doc/1981/1981canlii3424/1981canlii3424.html?autocompleteStr=Currie%20v%20Potter%20%5B1981%5D%206%20WWR%20377%20(Man%20QB)&autocompletePos=1 Currie v Potter]'' [1981] 6 WWR 377 (Man QB)) and finding a disposition after the signature to have been intended to precede the signature (''Palin v Ponting'', [1930] para 185, considered in ''Beniston Estate v Shepherd'', (1996) 16 ETR (2d) 71 (BCSC)). However, to ensure the validity of the will and all dispositions, the will should be signed at its end, after all dispositions. When a will is more than one page, it should be signed at the end of the last page and there should be a portion of the will on the last page. The last page of the will should indicate the will-maker is signing this page as the last of all the pages constituting the will. Although not required, the will-maker and witnesses should initial the other pages of the will.

:'''NOTE:''' ''Bill 21'' includes an amendment to ''WESA'' allowing for electronic signatures, however the amendment has not yet come into force at the time of this publication. If the amendment is brought into force, section 39(1) of ''WESA'' will not apply to electronic signatures so it will be particularly important to ensure that electronic signatures are properly placed to indicate that the will-maker intended to give effect to the entire will. See '''Section III.D.2: Electronic Wills''', for more information.

==== c) Electronic Signatures ====

The will-maker must make or acknowledge the signature in the joint presence of two attesting witnesses present when the will is signed (''WESA'', s 37) A beneficiary of the will or the will-maker’s spouse should never witness the will, as it may void the gift they receive through the will (''WESA'', ss 40, 43).  It will be sufficient if the will-maker has made their signature in the joint presence of the witnesses. If they have not, the will-maker must acknowledge the signature in the witnesses’ presence, as it becomes a question of fact that witnesses must have actually seen or been able to see the signature when the will-maker acknowledged it (see ''Re Schafner'', (1956) 2 DLR (2d) 593 (NSSC)).  

On August 14, 2020, ''Bill 21'' received Royal Assent and made significant changes regarding the ''WESA'' presence requirements for witnessing a will. ''Bill 21'' added section 35.2 to ''WESA'', which allows individuals to be in each other’s “electronic presence” to satisfy the requirement that a person take an action in the presence of another person, or while other persons are present at the same time. Electronic presence is defined as “the circumstances in which 2 or more persons in different locations communicate simultaneously to an extent that is similar to communication that would occur if all the persons were physically present in the same location” (''WESA'', s 35.1).

 

The requirements for electronic witnessing under the Order are slightly different from the requirements laid out in ''Bill 21''. The Order required that one of the witnesses be a lawyer or notary public, and also required that the will include a statement saying that it was signed and witnessed in accordance with the Order. Section 11(3) of ''Bill 21'' stipulates that a will made on or after March 18, 2020 that complies with section 35.2 of the ''WESA'' may be valid, whether or not it purports to have been made under the Order. ''Bill 21'' contains a provision which will eventually repeal the Order, however that section as well as several other sections of ''Bill 21'' have not yet been brought into force. See '''Section III.D.2: Electronic Wills''', above for more information on ''Bill 21''.  

== F. Court’s Power to Cure Deficiencies and Rectify Wills ==

 

 

 

 

 

 

 

 

 

 

 

== G. Filing a Wills Notice ==

There are three ways of filing a Wills Notice: either online, by mail, or in person. All three methods require a $17.00 charge for filing, payable to the Minister of Finance. Forms are available from '''BC Government Forms Finder''', website: https://www2.gov.bc.ca/gov/content/home/forms-a-z. If filing by mail is preferred, then the VSA 531 form must be completed and mailed to '''Vital Statistics Agency''', PO Box 9657 Stn Prov Govt, Victoria, BC V8W 9P3.

Finally, the VSA 531 form can be submitted in person to any Service BC Counter. Locations can be found at: www.servicebc.gov.bc.ca.   

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