Making a Valid Will in BC: Signing, Witnesses and the Formalities That Matter

If you are making your first will, or replacing one you signed years ago, the wording is only half the job. In British Columbia a will also has to be signed and witnessed in a particular way, and slips at the signing table can leave your family facing a court application.

This article walks through the formal requirements under the Wills, Estates and Succession Act: age, writing, the signature, the two witnesses, who should not witness, electronic wills, and the optional wills notice that helps your family find the will later.

The basic rules: age, writing, signature and witnesses

Under section 36 of the Wills, Estates and Succession Act (WESA), anyone who is 16 or older and mentally capable of doing so can make a will. If questions about capacity could come up later, for example after a diagnosis that affects memory, it is worth having the will prepared and signed with a lawyer who can keep notes of how your instructions were given and how the signing went.

Section 37 of WESA then sets out what a valid will must look like. In plain terms:

• It must be in writing. A typed or handwritten document qualifies, and since December 1, 2021, an electronic document does too.
• You sign it at the end. If you signed before the witnesses arrived, you can instead acknowledge the signature as yours in front of them. The Act is flexible about where "the end" is, but a gift or instruction placed after your signature, or added after you sign, is not covered by that signature.
• Two witnesses are present at the same time. Both must be there together when you sign or acknowledge your signature, not one on Monday and the other on Wednesday.
• Both witnesses sign in your presence. Each witness signs the will while you are there.

Notice what is not on the list. BC law does not require a will to be notarized, and there is no mandatory government form. But a will that misses any of the four steps is invalid unless the court steps in, and a handwritten will signed without witnesses does not meet these rules.

Choosing your witnesses

Witnesses must be 19 or older (section 40). The more important question is who should not witness. Under section 43, a gift in the will to a witness, or to a witness's spouse, is void. The rest of the will still stands, but that person loses the gift unless a court is satisfied that you really intended them to have it, which means a court application. The same rule applies to a person who signs the will on your behalf at your direction, and to that person's spouse.

In practice:

• Don't ask a beneficiary to witness, or the spouse of a beneficiary.
• Be careful with family members. A relative who is not named in the will may still be the spouse of someone who is.
• Choose independent adults who can be found later. If questions about the signing ever come up, your executor may need to contact the witnesses.

Electronic wills and remote signing

Since December 1, 2021, BC has recognized electronic wills. The requirement that a will be in writing is met if it is in electronic form, and an electronic will is a will for all purposes. WESA also allows the "presence" requirements to be met through electronic presence: people in different places communicating at the same time, much as they would if they were in the same room. When the will-maker and witnesses sign this way, the will can be made by each of them signing complete and identical copies, called counterparts.

These options help when people cannot be in the same place, but they add steps that are easy to get wrong: the technology, the counterparts, and keeping the electronic original secure. If you want an electronic will or a remote signing, have a lawyer set up the process.

The court can fix some mistakes, but do not plan on it

Section 58 of WESA gives the court power to order that a document, or a change written on a will, is fully effective even though the formal requirements were not met. The court must be satisfied that the document records what the person actually intended.

That power is a safety net for your family, not a substitute for signing properly. Using it means a court application, evidence about your intentions, legal costs and delay, with no certainty about the result. If the court does not recognize the document, your estate may be distributed under an earlier will or, if there is none, under the rules that apply when someone dies without a will.

Register a wills notice so your will can be found

A valid will only helps if it can be found. BC lets you file a wills notice with Vital Statistics, recording that you have made a will and where the original is kept. Vital Statistics does not keep a copy of the will or record anything about its contents. Filing is optional, but after a death a search for a wills notice is part of the probate process, and it is one of the first steps on our checklist for when a parent dies. A notice on file points your executor to the original. A lawyer or notary can file it for you, or you can file your own.

Keep the signed original somewhere safe and tell your executor where it is. If you later move the will or replace it, update the notice.

Replacing an older will

If your current will was signed years ago, signing a new one is a good moment to check the rest of your plan. Since WESA took effect on March 31, 2014, marriage no longer revokes a will, and a gift to a spouse is generally treated as revoked if the spousal relationship ends, so an old will may say more, or less, than you expect. A will also only takes effect at death. Decisions during your lifetime need separate documents, explained in Power of attorney or representation agreement?

Making or updating your will? Get the signing right from the start

Our wills and estate planning lawyers can prepare your will, arrange a signing that follows the WESA formalities, and file a wills notice for you.

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