Validity of a Will in British Columbia

In British Columbia, the validity of a will is governed by a statutory framework that balances formal execution requirements with flexibility in defined circumstances. The Wills, Estates and Succession Act (“WESA”) sets out clear requirements for the making of a will and provides a mechanism by which the court may recognize certain non-compliant documents where they nonetheless reflect genuine testamentary intention.

Under section 37 of WESA, a will is formally valid if it complies with the statutory execution requirements. These include that the will be in writing (including electronic form) and signed at its end by the will-maker, or the signature at the end must be acknowledged by the will-maker as the will-maker's signature, in the presence of two witnesses present at the same time. The will must be signed by two or more of those witnesses in the presence of the will-maker.

Pursuant to section 36 of WESA, the will-maker must be at least 16 years old and have testamentary capacity. In brief, testamentary capacity requires that the will-maker understand the nature and effect of making a will and the general extent of their property. They must be able to comprehend and appreciate the claims of those who might reasonably expect to benefit from the estate (Laszlo v. Lawton, 2013 BCSC 305 at paras. 185-188). A will that meets these requirements is legally effective upon death.

Section 58 of WESA addresses situations in which a document does not comply with the formal requirements for the making of a will. Under that provision, the court may order that a record, document, or writing or marking on a will or document that does not comply with section 37 be effective as the will or part of the will of the deceased, provided the court is satisfied that it represents the will-maker’s fixed and final testamentary intentions. Depending on the circumstances, such an order may give effect to a document as a standalone will, incorporate it as part of an existing will, or give effect to a revocation, alteration, or revival of a testamentary disposition. This mechanism has been applied to validate unsigned drafts, handwritten notes, and electronic documents, including emails. Not every informal document will qualify, and the analysis turns on whether the document reflects a final testamentary decision rather than a preliminary or exploratory expression of intent (Fleury Estate (Re), 2025 BCSC 22 at paras. 31-37).

Section 58 of WESA and proof in solemn form perform distinct legal functions and should not be conflated. Section 58 addresses the threshold question of whether a record, document, or writing may be given testamentary effect by permitting the court to recognize non-compliant materials as forming all or part of a will where they reflect the deceased’s fixed and final testamentary intentions. Proof in solemn form, by contrast, is the procedural mechanism through which disputes about a will’s validity are finally resolved. Where the validity of a will is challenged—whether the will arises from compliance with section 37 of WESA or from an order made under section 58 of WESA—those issues may be determined within a proceeding for proof in solemn form. Such a proceeding conclusively resolves whether the document constitutes the deceased’s valid last will (see e.g., Fuzi v. Kiss, 2020 BCSC 1779 at paras. 18-24).

In the context of a validity dispute, an interested person may file a Notice of Dispute, which prevents the issuance of a grant of probate until the dispute is resolved. The propounder of the will bears the legal burden of proving due execution, where applicable, as well as testamentary capacity and knowledge and approval. Where a will appears rational on its face and is shown to have been duly executed, presumptions may arise that the will-maker had testamentary capacity and knew and approved of the contents of the will. However, where suspicious circumstances are present, those presumptions are displaced. The propounder must affirmatively establish capacity, knowledge and approval on a balance of probabilities (Vout v. Hay, 1995 CanLII 105 (SCC); Underhill Estate (Re), 2025 BCSC 1722 at paras. 71-73).

Wills may also be challenged on substantive grounds such as undue influence. Section 52 of WESA addresses undue influence by creating a statutory burden-shifting framework in defined circumstances. Where it is established that a person stood in a position where the potential for dependence or domination of the will-maker was present and the statutory preconditions are met, the onus shifts to the party seeking to uphold the will or the challenged provision to establish, on a balance of probabilities, that the will-maker’s free agency was not overborne. In practical terms, this requires evidence that the testamentary decision was the product of the will-maker’s free, full, and informed thought, rather than domination (see e.g., Jung Estate v. Jung Estate, 2022 BCSC 1298).

In conclusion, determining the validity of a will in British Columbia requires careful attention to both the substantive requirements of WESA and the procedural mechanisms available when validity is contested. Understanding how formal compliance, curative provisions, and proof in solemn form operate together is essential to assessing whether a document truly reflects a deceased person’s testamentary intentions.

Disclaimer

This article is provided for general informational purposes only and does not constitute legal advice. The law in British Columbia may differ from other jurisdictions and is subject to change. Readers should consult a lawyer regarding their specific circumstances. No solicitor-client relationship is created by reading this article or by any unsolicited communications.