Handwritten Wills in BC: Are They Valid?

You may have written your own will by hand, or found a handwritten note among a parent's papers after they died. Either way, the question is the same: does it count as a will in British Columbia?

The answer depends on how it was signed and witnessed. This article explains the formal rules, what happens when a handwritten will falls short, and what to do if you are holding one now.

The short answer: BC has no special rule for handwritten wills

Some legal systems recognise a "holographic" will, meaning one written entirely in the will-maker's own handwriting and signed, without witnesses. British Columbia is not one of them. The Wills, Estates and Succession Act (WESA) sets the same formal rules for every will, whether it is typed, printed from a template or written by hand.

Under section 37, a will must be:

• In writing. Handwriting counts as writing, and so does an electronic document.
• Signed at its end by the will-maker, or the will-maker must acknowledge the signature at the end as their own, in the presence of two or more witnesses who are present at the same time.
• Signed by at least two of those witnesses in the presence of the will-maker.

The will-maker must also be at least 16 and mentally capable (section 36), and witnesses must be 19 or older (section 40). So a handwritten will is perfectly valid in BC if it was signed and witnessed properly. The problem is that most handwritten wills are not.

What happens if the handwritten will was not witnessed

Section 37(2) says a will that does not meet the formal rules is invalid unless one of a few exceptions applies. The two that matter most for a handwritten document are:

• A court order under section 58. The Supreme Court can order that a document, record or writing is fully effective as a will if it decides the document represents the deceased person's testamentary intentions.
• Recognition under section 80. A will can be formally valid in BC if it was made in accordance with the law of the place where it was made, or the law of the will-maker's domicile, ordinary residence or citizenship at certain times. A holographic will written somewhere that accepts them may qualify on that basis, which needs a careful look at the other jurisdiction's law.

If neither exception applies, the document has no effect as a will. Because an invalid document does not revoke an earlier will (section 55 lists how a will can be revoked), the estate then passes under any earlier valid will, or under the intestacy rules if there is none. Our article on dying without a will in BC explains how those rules divide an estate.

How section 58 works in practice

Section 58 is often described as BC's "curative" provision. It is broad: it can apply to a handwritten note, an unsigned draft, a document with only one witness, or an electronic record. It can also give effect to a person's intention to revoke, change or revive a will.

But it is not automatic, and it is not a shortcut. Someone, usually a family member or the person named as executor, has to apply to court and file evidence. The court must be satisfied that the document records what the person actually intended to happen to their property on death, rather than notes, a wish list or a draft they never settled on. Common questions include:

• Is the document in the deceased person's handwriting, and can anyone confirm that?
• Was it signed or dated, and where was it kept?
• Did the person describe it to anyone as their will?
• Does it fit with what the person said or did in the months before death?
• Was there a later document, or a lawyer's file, that points in a different direction?

Other people who would inherit under an earlier will or on intestacy can oppose the application. That can turn a short handwritten page into a contested court process, with the cost and delay that follow.

Changes written onto an existing will

Handwritten changes cause problems too. Under section 54, an alteration to a will (other than an electronic will) must be made the same way as a valid will: signed by the will-maker and witnessed, in the margin or near the change. A will-maker who crosses out a name, writes in a new gift or adds a note to a signed will without doing that has generally not made a valid alteration, although an unwitnessed change can still cancel words it makes illegible. Section 39 also says a signature placed correctly does not give effect to a gift or direction that follows the signature, or that was inserted after the will was signed.

A court can sometimes give effect to the change under section 58, and section 58(4) lets the court reinstate original wording made illegible by an improper alteration if there is evidence of what it said. Until a court decides, though, the executor and the family may not know which version governs.

Gifts to witnesses and their spouses

Even a properly witnessed homemade will can trip over section 43. A gift to a witness, or to a witness's spouse, is void unless a court declares otherwise. The rest of the will still stands, but the gift fails. People who ask a family member or a beneficiary's partner to witness a kitchen-table will often do not realise this until after the death. Our guide to signing and witnessing a valid will in BC covers who should and should not act as a witness.

Found a handwritten will? What to do next

If you have found a handwritten document after someone's death, keep it safe and do not write on it, staple it or remove anything attached to it. Then:

• Look for other wills. Search the person's papers, ask their lawyer or notary, and apply to Vital Statistics for a wills notice search, which shows where a registered will was kept (the registry does not hold the will itself).
• Note how and where it was found. Who had it, where it was kept, and who knew about it may all matter later.
• Do not distribute anything yet. Until the court has dealt with the document, no one can safely rely on it.
• Get advice early. Whether to apply under section 58, and how to approach other family members, depends on what else exists and who is affected.

If you are thinking of writing your own will

A handwritten will can work in BC, but only if you follow the same signing and witnessing steps as any other will. If you miss one, your family may face a court application to prove what you meant. A properly prepared and witnessed will removes that question, and it gives you a chance to deal with issues a homemade will often misses, such as an alternate executor, guardians for minor children, and assets that pass outside the will.

Wrote your own will, or found one? Get the next step right

Our wills and estate planning lawyers can review a handwritten or homemade will, prepare a new will that meets the BC signing rules, and explain the options if a handwritten document turns up after a death.

Call 604-259-2844 or send us a message to arrange a consultation at our Vancouver office.