Does a Will Signed in Hospital Hold Up in British Columbia?

When someone signs a will during a serious illness, relatives often worry afterwards. Was the person clear-headed? Did medication play a part? Were the right people in the room? These worries are common, and they do not automatically mean the will fails.

This article walks through how British Columbia law approaches a will signed in hospital. It gives general information only. Each case turns on its own facts, so a lawyer should review the specifics.

This article covers the law of British Columbia.

Hospital signing is not the test

A hospital setting tends to raise questions about the will-maker's state of mind and about how the signing was done, so it helps to know what the law requires. Under the Wills, Estates and Succession Act (WESA), a person who is 16 or older and mentally capable may make a will. The statute does not define mental capability itself, so British Columbia courts apply the test from case law together with s. 36.

How illness, tiredness or pain affects capacity depends on the person and the circumstances, so it is worth confirming with a lawyer. But serious illness can lead others to question it, so the circumstances of the signing become important evidence.

Medication and illness

Families often focus on pain medication, confusion or sedation. These may be relevant to whether the person was mentally capable, but how much they matter depends on the medical evidence and the whole picture, and a lawyer can help you understand it.

• Hospital or care records from around the date of signing.
• Notes of what was said and who was present.
• Information from the person who prepared the will, if there was one.
• Accounts from visitors about how the will-maker spoke and behaved in the days around signing.

Capacity, as a legal question, is separate from formalities. A court order that cures a formal defect is not a cure for lack of capacity.

Witnessing a will in hospital

Signing rules still apply. A will must be in writing and signed at its end by the will-maker, or the signature acknowledged, in front of two or more witnesses present at the same time. The witnesses must then sign in the will-maker's presence. Witnesses must be 19 or older.

If a beneficiary or a beneficiary's spouse witnessed the signing, the gift to them can be void. That is why witnesses in a hospital are best chosen from people who do not benefit. Witnesses are also key evidence if the signing is disputed.

Suspicious circumstances and the risk of challenge

A will signed in hospital, with a major change in who benefits, may attract challenge. Vout v. Hay is the leading Supreme Court of Canada authority on suspicious circumstances in will disputes. It held that where they relate to mental capacity, the person propounding the will takes back the legal burden of establishing testamentary capacity.

The standard remains the balance of probabilities, though the evidence is scrutinized according to the gravity of the suspicion. Suspicious circumstances rebut the presumption of capacity and of knowledge and approval, but a person alleging undue influence or fraud generally still has to prove it, except where WESA s. 52 shifts the onus.

Under s. 52, if a challenger shows the other person was in a position of potential dependence or domination, the party defending the will must prove no undue influence was exercised. The challenger must first show that position and that it was used to influence the will.

What families can do next

• Keep the original will safe and note who has copies.
• Record names of anyone who witnessed or attended the signing.
• Ask about records from the relevant period, through proper channels.
• Watch for a probate notice. A person who receives notice may file a notice of dispute (Form P29).
• Know that filing a notice of dispute prevents a grant from being issued before the person can apply for an order requiring security.
• Know that the personal representative must not distribute the estate within 210 days of the grant except by court order.
• Get legal advice early, especially if a deadline may be near.

If you are a spouse or child and cannot show incapacity or undue influence, WESA s. 60 lets the court order adequate provision where the will does not make adequate provision for proper maintenance and support. A wills variation claim must be commenced within 180 days of the grant.

Frequently asked questions