What are the magic words necessary for a will to be legal (or “valid” as we say in legal circles)?
In my last column I explained that even the most minimal of your words can be “cured” as a valid will, even if they are in a computer file.
What’s necessary is for a judge to be satisfied that your words set out your fixed and final wishes about what you want done with your estate after you die (your testamentary intentions).
Many people make notes about what they might want to do with their estate without intending those notes to set out their fixed and final expression. For an invalid will to be cured, there must be reliable evidence that the document was created by you and that it actually sets out your testamentary intentions.
It’s best not to leave it up to an uncertain court application. Particularly uncertain because you won’t be there to tell the judge that you are the one who wrote those words, nor what your intentions were.
And the court application isn’t cheap.
Let’s get back to the scenario in my last column.
You’re on your way to the hospital for major surgery. Any major surgery comes with the risk of death, however minimal. You realize that you have never made a will.
I’ll add some details to make it more interesting.
Your only close family is your brother and father.
You have a very close relationship with your brother who has been an incredible support. The most significant was helping with the down payment on your condo. Without his help, purchasing it would not have been possible.
What a wonderful brother!
Your dad’s a different story. After your mom passed away, your dad found a new partner who you can’t stand. You might have gotten the down payment help from your dad, but his new partner convinced him to leave you on your own.
It’s very important to you that your condo go to your brother if you don’t make it through the surgery.
Certainly, anyone other than your dad!
The stakes are high because if you do not create a valid will, that’s exactly what will happen.
Why? British Columbia has a law that sets out a hierarchy of who will get your estate if you die without a will.
Absent a spouse or children, it goes to your parents.
Magic words? There are none.
Your words must simply make it clear that you are setting out your testamentary intentions, i.e. who you want to receive your estate if you die.
Having a title that says “Will” or “Last Will” is a very helpful indication of that intention. But they’re not a legal requirement.
And then the following would be plenty: “I want my estate to go to my brother”. If you’ve only got one brother, no need to even name him.
You would save your brother a bit of hassle by appointing him brother as your executor (“I appoint my brother as executor”), but the appointment of an executor not required for a will to be valid.
The only magic to making a will valid has to do with how it’s signed and witnessed.
To be valid, you must have two adult witnesses who are present with you when you sign the will, and who then each sign the will in your presence.
One of those witnesses should not be your brother. A gift to someone who witnesses your will is void. Though like many other things in this area of law, even that can be fixed by an application to a judge if the judge is satisfied that you truly intended to make that gift.
That’s it.
It can be handwritten on whatever you’ve got to write on i.e. a napkin would do.
You can then be rolled into surgery, comforted that you have a valid will naming your brother as beneficiary.
I wish to be very clear that I don’t recommend this kind of bare bones approach, though it will do in a pinch.
I do recommend taking the time and incurring the expense of consulting with a lawyer with estate planning expertise, as well as an estate tax accountant, as soon as possible after you make it through your major surgery.
A valid will is not the end goal. The goal is an outcome, after you die, that you would have wanted. In this extremely simple fact pattern, that goal will very likely be achieved if you die during surgery.
I say “very likely” because there are unlikely scenarios I could share with you where the estate would actually go to your dad, even with that valid will. A lawyer with estate planning expertise anticipates and deals with those scenarios to ensure that doesn’t happen.
As I’ve indicated before, I don’t provide those services, but I can refer you to those who do.
Paul Hergott
Lawyer Paul Hergott began writing as a columnist in January 2007. Achieving Justice, based on Paul’s personal injury practice at the time, focused on injury claims and road safety. It was published weekly for 13 ½ years until July 2020, when his busy legal practice no longer left time for writing.
Paul was able to pick up writing again in January 2024, After transitioning his practice to estate administration and management.
Paul’s intention is to write primarily about end of life and estate related matters, but he is very easily distracted by other topics.
You are encouraged to contact Paul directly at paul@hlaw.ca with legal questions and issues you would like him to write about.