Will Kit, Online Will or Lawyer? What BC Will-Makers Should Weigh

No law in British Columbia says a lawyer must prepare your will. A will written from a kit or through an online service can be perfectly valid if it meets the signing rules in the Wills, Estates and Succession Act (WESA).

The real question is whether a template fits your situation. For some people it does. For others, the gaps only appear after death, when they are expensive for the family to fix. This article sets out how to tell the difference.

What BC law actually requires

Under WESA, a person who is 16 or older and mentally capable may make a will (section 36). To be valid, section 37 requires the will to be in writing, signed at its end by the will-maker in the presence of two or more witnesses present at the same time, and signed by those witnesses in the will-maker's presence. Witnesses must be 19 or older (section 40).

BC also allows electronic wills. Section 37 treats a will in electronic form as being in writing, and other provisions allow electronic signatures and witnessing by people who are in each other's "electronic presence", meaning they communicate at the same time much as if they were in the same room. Our article on making a valid will in BC covers the signing steps in more detail.

None of these rules depends on who drafted the document. A kit, an online platform and a lawyer can all produce a will that meets them. The Province's own wills page says you can use a kit or online service, while suggesting help from a lawyer or notary public to make sure the will is legal.

Where kits and online wills tend to work

A template can be a reasonable choice when your circumstances are simple and likely to stay that way. That usually means:

• a modest estate, mostly in BC, with no business or rental property;
• one spouse or no spouse, and no children from earlier relationships;
• everything going to the same people in clear shares, with a trusted adult as executor; and
• no one you expect to be unhappy with the result.

Even then, the will is only as good as the way it is signed. The most common problems with home-made wills are practical: a witness who is also a beneficiary, a missing signature, or pages that were changed after signing.

Where templates fall short

Templates are built for the common case. They are less reliable when your situation needs judgement rather than a fill-in field.

Blended families and claims by spouses and children

Section 60 of WESA lets a spouse or child ask the court to vary a will that does not make adequate provision for their proper maintenance and support. A child does not have to be a minor or financially dependent to apply. If you plan to leave a spouse or a child less than they might expect, or are balancing a current spouse against children from a prior relationship, the wording of the will and the reasons behind it matter. See estate planning for blended families in BC.

Property and assets that pass outside the will

Jointly owned property, registered plans and insurance with named beneficiaries often pass outside the will. A template rarely asks how those assets fit with the will, so the overall result can differ from what you intended.

Businesses, trusts and minors

Shares in a private company, gifts to young children, or a beneficiary who receives disability assistance usually call for trust terms and powers that generic forms handle poorly or not at all.

Gifts to witnesses

Under 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 survives, but the intended gift may fail. This is easy to get wrong at a kitchen table.

The court can sometimes fix a defective will, at a cost

Section 58 of WESA allows the court to treat a document as a valid will, or as a change to one, even though it does not meet the formal rules, if the court is satisfied it represents the deceased's testamentary intentions. This is a useful safety net, but it means a court application, evidence about what the will-maker intended, and delay and cost for the estate. It is not a reason to skip the formalities.

What a lawyer adds

A lawyer's role is more than drafting. In a typical will file, the lawyer will:

• Take instructions in private, which helps reduce later claims of pressure or undue influence.
• Assess and record capacity, with notes made at the time the will is signed.
• Look at the whole estate, including joint assets, designations and business interests, not just the will.
• Flag wills variation risk and help you document your reasons if you choose an unequal division.
• Supervise signing so the formalities in sections 37 and 40 are met and witnesses are suitable.

A will is often one of several documents worth preparing together. Our article on estate planning documents every BC adult should have covers powers of attorney and representation agreements.

A practical way to decide

If your affairs are simple, a template may be adequate, provided it is signed and witnessed correctly. If any of the following apply, consider getting advice before you sign: children from more than one relationship, a spouse you intend to leave less than an equal share, a business or rental property, assets outside BC, minor or vulnerable beneficiaries, or family members you expect to object. Sorting these questions out while you can still explain your wishes is usually simpler than leaving your family to resolve them later.

Not sure a template fits your family? Talk it through before you sign

Our wills and estate planning lawyers can review your circumstances, prepare a will suited to your family and property, and supervise its signing.

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