A will can say exactly what someone wanted and still fail. British Columbia sets out formal requirements for how a will must be signed and witnessed, and a document that misses them is vulnerable. But an invalid will BC courts are asked to reject is not automatically the end of the story — since 2014, judges have had the power to cure defects where the deceased’s intentions are clear. Knowing which category a flawed will falls into determines whether an estate is distributed as written or as if no will existed at all.
Key Takeaways
- A valid BC will must be in writing, signed at its end, and witnessed by two people present at the same time.
- Witnesses must also sign in the will-maker’s presence.
- A gift to a witness or their spouse is presumptively void, though the will itself usually survives.
- Section 58 of WESA lets the court cure defects where the document reflects the deceased’s fixed intentions.
- If a will cannot be saved, the estate is distributed under the intestacy rules instead.
What WESA Requires
The Wills, Estates and Succession Act sets out the formal requirements. A will is valid if it is:
- In writing. Handwritten, typed, or printed. BC does not recognize purely oral wills.
- Signed at its end by the will-maker, who must be at least 16 and have testamentary capacity.
- Signed in the presence of two witnesses, both present at the same time.
- Signed by both witnesses in the will-maker’s presence.
The full text of the statute is available through BC Laws, which is worth consulting if you are examining a specific document.
The “present at the same time” requirement is where homemade wills most often fail. A will-maker who signs in front of one neighbour on Monday and another on Thursday has not met it, however genuine the document.
The Most Common Signing Problems
Witnesses who weren’t together. As above — the single most frequent defect in DIY wills.
Only one witness, or none. Common with wills written during illness or in a hurry.
A beneficiary acting as witness. The will generally remains valid, but the gift to that witness or their spouse is presumptively void. Courts can declare the gift valid where satisfied there was no undue influence, but it requires an application.
Signing in the wrong place. The signature must be at the end of the document. Anything appearing below it may be excluded.
Unsigned amendments. Handwritten changes made after signing — crossing out a name, adding a bequest in the margin — are not effective unless executed with the same formalities.
Unsigned drafts. A lawyer’s draft the will-maker reviewed and approved but died before signing is not a will, though it may be strong evidence in a section 58 application.
Section 58: The Provision That Saves Wills
Before 2014, a defectively signed will simply failed. Section 58 of WESA changed that. The court can now order that a record, document, or writing be effective as a will even though it does not meet the formal requirements — provided the court is satisfied it represents the deceased’s fixed and final testamentary intention.
This is a meaningful power, and it has been applied to unsigned drafts, documents missing a witness, handwritten notes, and electronic records. But it is not a formality. The applicant must satisfy the court on the evidence, and two things matter most:
Authenticity. Is the document genuinely the deceased’s?
Deliberate, fixed, final intention. Did the deceased intend this document to operate as their will — not as notes, a draft to revisit, or a wish list?
A document the deceased described as “something to think about” will fail. One they signed, dated, told family about, and stored with their important papers has a much stronger case even if a witness was missing.
Section 58 applications require evidence: the drafting lawyer’s file, correspondence, the circumstances of signing, and witness statements about what the deceased said and did.
When a Will Cannot Be Saved
If no document qualifies, the estate is treated as intestate and distributed under the statutory formula. A surviving spouse receives household furnishings plus a preferential share — $300,000 where all children are shared with the spouse, $150,000 where any child is from another relationship — with the residue split half to the spouse and half among the children.
That outcome frequently differs sharply from what the deceased intended. A long-term partner below the two-year threshold receives nothing. Stepchildren who were never adopted receive nothing. A charity the deceased meant to benefit receives nothing.
If an earlier, properly executed will exists, it may govern instead — which is why locating prior wills matters before assuming intestacy.
What to Do If You Suspect a Problem
- Secure the original. Photocopies create evidentiary problems; keep the original safe and unmarked.
- Order a wills search through BC’s Vital Statistics Agency to identify any registered wills notices.
- Gather the surrounding evidence — the drafting lawyer’s file, emails, notes, and recollections of anyone present at signing.
- Get advice before filing. Whether to apply under section 58, proceed with the will as written, or treat the estate as intestate is a decision with real consequences.
- Watch the deadlines. Other claims against the estate run on their own clocks, including the 180-day wills variation window.
Schedule a Consultation
Questions about whether a will was properly executed are among the more technical areas of estate law, and the answer determines who inherits. The estate litigation team at Lawgical Law Corporation provides honest advice about whether a defective will can be saved and what it will take. Learn more about our firm, or contact us for a confidential consultation at our Vancouver, Surrey, or Abbotsford offices.
Frequently Asked Questions
Is a handwritten will valid in BC? It can be, provided it meets the signing and witnessing requirements. Handwriting alone is not the problem; missing witnesses usually are.
What if only one person witnessed the will? The will does not meet the formal requirements, but a section 58 application may still succeed if the deceased’s intention was fixed and final.
Can a beneficiary witness a will? They can, but the gift to them is presumptively void. The court can validate it on application.
Are electronic or video wills valid? BC permits electronic wills meeting specific requirements. A video recording alone is not a will, though it may support a section 58 application.
What happens if no valid will exists? The estate is distributed under the intestacy rules, which may differ considerably from what the deceased intended.