Capacity to make a Canadian Will.

In order for a Will to be valid it must be made by a person who has attained the age of majority in his or her Province and is of sound mind. A court will refuse to grant probate where it is not satisfied that the Will is the free act of the testator, as where there is undue influence. Where a person making a Will is suffering from a mental illness, the Will may be deemed to be valid if made during a period of lucidity and not invalidated by a subsequent relapse.

Requirements for signatures.

For a Will to be upheld as valid it must be in writing, and in accordance with the following requirements in relation to the signature. The Will must be signed by the testator or by someone directed to do so on his behalf. Signatures may include marks, initials, a rubber stamp, a "nick-name", or a former name. The general test in relation to the admissibility of the Will is whether the testator intended the signature to execute the Will. The Testator must sign his or her name at the foot of the Will. The law will not give effect to any dispositions made after the signature.

The testator's signature must be made in the presence of two witnesses both present at the same time with the testator, and the witnesses will then be required to sign the Will in the presence of the testator. The witnesses do not have to be present when the testator signs the Will provided they are present when the testator acknowledges the signature.

Revocation of a Canadian Will.

A testator may revoke a Canadian Will in several ways.

(1) A Will may be revoked by a later Will or codicil.

(2) A Will may be revoked by destroying it or by the testator directing another to destroy it in his presence. The writing of the word "revoked" on the Will is insufficient to legally revoke the Will.

(3) A Will made in most Provinces will be revoked by marriage unless it is made in contemplation of marriage.

(4) Generally, a Court Ordered separation or divorce may serve to invalidate dispositions in favor of one's spouse unless a contrary intention appears in the Will.

Gifts to witnesses.

In general any gift made to those who witness a Will is void. Should you wish to give a gift to a witness you should make provision for this gift in a codicil signed by witnesses other than those you wish to benefit.

If the executors or trustees of the Will witness the Will, they will not be entitled to charge professional or executor fees for acting in such a capacity.

Legal rights of a spouse and child.
In most Provinces, the law will permit a court, where it is of the opinion that the testator has failed in his moral duty to make proper provision for a child or his spouse in accordance with his means, to make an order that such provision be made for the child or spouse out of the testator's estate as the court thinks just.
However, notwithstanding the above, there are instances in which a court will permit a testator to disinherit a child. Should you want to disinherit such a child, we recommend that you seek the advices of a lawyer.
Intestacy.

Under the Estate Administration Act of British Columbia, where a testator dies and leaves a spouse and no children, the spouse shall have a legal right to all of the testator's estate. Similarly, where the testator dies leaving only children, and no spouse, the children will be entitled to the testator's full estate.

If the testator leaves a spouse and one child, the spouse will take the first $65,000 and the remainder will be divided between the spouse and child in equal parts.

If the testator leaves a spouse and more than one child, the spouse will take the first $65,000 and the remainder will be divided between the spouse and child in the ratio of 1:2.

In the event that a person dies intestate, ie without having made a Will, the person's Estate will be distributed in equal shares to his parents or, if only one parent is living, to that parent alone. Where the person is not survive by parents, the Estate will pass to the person's brothers and sisters equally. Again, where there are no surviving siblings, the estate will pass to nieces and nephews in equal shares; and so on to cousins etc, the ultimate successor being the State.

This information is based on our understanding of current law which may be subject to change in the future. The information in this website does not constitute legal advice. You should obtain the advice of a professional advisor before relying on any information contained in this website.

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