- A valid will must be in writing, signed by the will-maker and signed by at least two witnesses in the required way.
- Even a will that misses the formalities can sometimes be upheld by the court.
- A notice of dispute can be filed before the grant is issued, but only by a person who is entitled to notice of the application or who claims an interest under a prior or later will.
Sometimes a will looks wrong. The signature does not seem like your relative's, nobody can say who witnessed it, or it appeared suddenly after the death. These doubts are stressful, and it is hard to know whether they amount to a legal problem.
This article sets out what British Columbia's Wills, Estates and Succession Act (WESA) requires for a valid will, what the court can do when the rules were not followed, and how you can raise a concern before probate is granted.
This article covers the law of British Columbia.
What a properly signed will looks like
Under WESA, a will must be in writing and signed at its end by the will-maker, or the signature acknowledged, in the presence of two or more witnesses present at the same time.
The will must then be signed by two or more of those witnesses in the will-maker's presence. If any of these steps was skipped, that is a reason to look more closely.
Common concerns and the WESA ground behind them
| Concern | Related ground | Where it comes from |
|---|---|---|
| Only one witness, or witnesses were not together | Signing formalities not met | WESA s. 37(1) |
| Will-maker was very unwell or confused | Lack of mental capacity | WESA s. 36(1) |
| Someone who controlled care or money arranged the will | Undue influence | WESA s. 52 |
| Signature does not look genuine | A question of evidence about who actually signed | Worth confirming with a lawyer who can see the document |
A person who is 16 years of age or older and mentally capable of doing so may make a will, and a will made without mental capacity can be challenged as invalid. Where undue influence is claimed and the person claiming it shows that another person was in a position where the potential for dependence or domination of the will-maker was present, the party defending the will or gift then has the onus of proving that no undue influence was exercised.
Forgery itself is a question of evidence about who actually signed. The rules for how it is proved and what follows are best confirmed with a lawyer who can look at the document.
A will that breaks the rules can still be upheld
Do not assume that a missing witness ends the matter. Under WESA section 58, the court may order that a record or document is fully effective as the will-maker's will, or as a revocation, alteration or revival of a will, even though it does not comply with the Act. A record includes electronic data.
That means a person who wants to rely on an imperfect document may ask the court to give it effect, and a person who doubts it should expect that argument.
Raising a concern before probate is granted
Before applying for a grant, the applicant must deliver a notice of proposed application in Form P1 to the persons listed in Rule 25-2(2), including each beneficiary under the will and those who would be intestate successors. The application cannot be made until at least 21 days after the notice is delivered.
If you are one of those people, or you claim an interest under a prior or later will, you may file a notice of dispute in Form P29 before the grant or authorization is issued. A person must not file more than one notice of dispute for any one estate. While it is in effect, the registrar must not issue a grant. It stops after one year, at the end of any renewal, if withdrawn, if the will is proved in solemn form, or if the court orders it removed.
The court may renew a notice of dispute for any period it considers appropriate, but if the renewal application is made after the notice has lapsed, the disputant must show good reasons it could not be brought earlier, substantial prejudice to the disputant, and no substantial prejudice to other interested persons. Any person interested in the estate may also apply for an order removing a notice of dispute, and the court may order removal if the filing is not in the best interests of the estate.
Proof in solemn form means the court pronounces for the force and validity of the will in solemn form of law after a trial or hearing.
What to do next
- Ask for a copy of the document and note the date it was signed.
- Collect earlier wills and samples of the person's signature from other documents.
- Identify the witnesses and when you can reach them.
- Search Court Services Online for probate and caveat/dispute cases using the deceased's last name.
- See a lawyer promptly, because a notice of dispute must be filed before the grant is issued.
Frequently asked questions
Is a will invalid if only one person witnessed it?
The Act requires two or more witnesses present at the same time, and at least two of them must sign in the will-maker's presence. A court may still give effect to a document that does not comply, so it is worth getting advice.
Can a will be valid if it is electronic?
The court may order that a record, which includes electronic data, is fully effective as a will even though it does not comply with the Act. Whether it would in a particular case depends on the facts.
How do I stop probate if I think the will is forged?
You may file a notice of dispute before the grant is issued if you are entitled to notice or claim an interest under another will. While it is in effect, no grant can be issued.
How long does a notice of dispute last?
It ends one year after it was filed unless the court renews it, and it also ends if withdrawn, if the will is proved in solemn form or if the court orders its removal.
Sources
- Wills, Estates and Succession Act, s 36 (BC Laws) — bclaws.gov.bc.ca
- Supreme Court Civil Rules, BC Reg 168/2009, Rule 25-10(1) (BC Laws) — bclaws.gov.bc.ca
- CSO Help – Search by Deceased Name, Government of BC — justice.gov.bc.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
This is a wills & estates question
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