Family, Estates & Trusts 


Can a Will be Changed After Death in British Columbia?

Do you want to ensure that your loved ones are adequately provided for when you die? Preparing a will creates peace of mind, knowing that your affairs are in order and that your family members will be taken care of.

If you die without a will, you have no control over who administers your estate and the distribution of your assets and property. Good estate planning minimizes the burden on your loved ones by providing clear instructions as to your wishes following your death.

Attempts to alter a will after death are legally impossible and could result in charges of forgery or fraud. In addition, if someone discovers that a will has been altered following the death of the will-maker, they may challenge the validity of the will in court. This may result in the entire will, or portions of it, being invalidated.

If you need help with estate litigation, contact our Will Dispute Lawyers for any questions regarding your will. Our Estates & Trust Lawyers are experienced in addressing will disputes and handle every case with care.

This blog covers the importance of estate planning and highlights the options available to different people who feel that a will must be changed.

The Finality of a Will

The Finality of a Will

A will is a legal document that contains a person’s wishes after they die, such as what to do with their money or property.

The Wills, Estates and Succession Act (“WESA”) is the law that applies to the making of a will, variation of a will, probate and estate administration, inheritance rules, and other estate law issues. WESA replaced several older statutes and effectively modernized and streamlined the law regarding wills and estates in British Columbia.

To create a legally valid will in accordance with section 37 of WESA, it must be:

  1. in writing;
  2. signed by the will-maker; and
  3. signed in the presence of two witnesses who are 19 years of age or older.

If your estate plan changes and you wish to alter your will, the alteration(s) must meet the same requirements under section 37 of WESA.

Once the will-maker dies, the will is considered final and becomes a legal instrument subject to probate and administration according to the laws of British Columbia. A will-maker’s last will reflects their intentions regarding the distribution of their assets after death and is therefore final and must be respected. Creating a legally valid will from the beginning is the best way to ensure that your instructions after death are clear and concise.

You should consider adding minor changes to your will whenever your circumstances or wishes change and not leave it to the law to regulate your estate, for example, if a person becomes a spouse after two years of living with someone in a “marriage-like relationship”. If there was no will in place when that occurred, a new spouse could then inherit part or all of their partner’s estate under the rules of intestacy. Drafting a new will to reflect the parties’ actual wishes, if different from the intestacy rules, may be appropriate in these circumstances.

Exceptional Circumstances for Changes

Exceptional Circumstances for Changes

In British Columbia, there are limited circumstances in which a will may be altered posthumously, such as:

  1. Curing Deficiencies: If there are deficiencies or defects related to the signing of the will, witnessing requirements, or other formalities, section 58 of WESA grants the Court the power to “cure” any deficiencies and declare a document to be a valid will.
  2. Rectification: If there is evidence of a clerical error or mistake in the drafting or execution of a will, the Court may correct the error to reflect the testator’s trust intentions.
  3. Variation: Beneficiaries can apply to the Court to vary the terms of a will if they believe they have not been adequately provided for. This can include a will-maker’s spouse or children who were not previously provided for in the deceased’s will at all.
  4. Construction: If the language in a will is ambiguous or unclear, the Court may interpret or construe a specific term to give meaning to the will-maker’s intentions.
  5. Fraud or Undue Influence: If a will-maker was subject to fraud, undue influence, or coercion that influenced or impacted them when making the will, the Court may set aside or invalidate the will.
  6. Mutual Wills: In cases where two or more individuals make wills containing reciprocal provisions, the surviving will-maker may be bound to the terms of the mutual wills and therefore unable to alter their will unilaterally.

How to Prevent Posthumous Changes to Your Will

How to Prevent Posthumous Changes to Your Will

Ensuring that your will is clear and concise is critical. You will want to prepare your will in a way that avoids ambiguity, confusion, and potential disputes among your beneficiaries. Here are some helpful tips for creating a last will with legal accuracy:

  1. Seek Legal Advice: Consult with a lawyer to ensure that your will is legally valid and adheres to the requirements under WESA.
  2. Organize Your Assets: Create a list of your assets and liabilities, such as property, bank accounts, and personal belongings.
  3. Identify Executor(s) and Beneficiaries: Decide who you wish to pass your estate assets along to.
  4. Be Specific: Provide detailed instructions for the distribution of your assets, such as specific gifts.
  5. Consider Contingencies: Plan ahead for unexpected events, such as divorce or the death of a beneficiary.
  6. Update Regularly: Review your will whenever your circumstances change. Significant changes in your family dynamics, finances, and personal life should prompt a review of your will and/or result in the preparation of a new will.

Rectification Process

Rectification Process

Section 59 of WESA allows the Court to rectify a will if the Court determines that it fails to carry out the will-maker’s intentions due to:

  1. an error arising from an accidental slip or omission;
  2. a misunderstanding of the will-maker’s instructions; or
  3. a failure to carry out the will-maker’s instructions.

Once you have identified an error or mistake in a will, an interested party, such as an executor, trustee, or beneficiary, can apply to rectify the will no later than 180 days after a Grant of Probate is issued.

You must gather evidence to prove that there was a genuine error in an existing will. This might include drafts of the will, correspondence with the lawyer who prepared the will, or testimony from the same two witnesses who were present when the original will was signed.

If you believe that a spouse or family member’s existing will failed to capture their intentions, we welcome you to contact our experienced estate litigation lawyers to explore your options!

Will Variation Claims

Will Variation Claims

A wills variation claim is a legal process that allows a spouse and/or child(ren) of a deceased person to contest the distribution of the deceased’s estate. This usually occurs when spouses or children feel that the deceased failed to adequately provide for them in their will, or at all. The primary purpose of the wills variation claim is to promote fairness and equality in the distribution of an estate where a parent or spouse died and failed to fulfill their moral obligations to their family.

For clarity, the people who can apply under section 60 of WESA to vary an estate are:

Spouses: This can be a legally married spouse or a common-law marriage. This does not include a divorced or former spouse.

Children: Biological and adopted children of the will-maker are eligible under WESA. Stepchildren and other dependents may also be considered in certain situations.

– Spouses and children have 180 days to commence a will variation claim from the date the Grant of Probate was issued. The Court will consider the following when contemplating whether to vary a will:

Financial Need: The claimant must establish a genuine financial need for additional provision from the estate (e.g. proof of inadequacy to meet basic living expenses). 

Size of the Estate: The court considers the overall value of the willmaker’s estate. In the case of a larger estate, there are more assets available for distribution.

Moral Obligations: The court also considers the moral obligations of the willmaker towards the claimant. It could include the level of dependency and any promises made by the willmaker.

If you’re curious about the process of a will variation claim and what it entails, contact the experienced lawyers at Onyx Law Group today and we’ll take care of the rest!

Know your Rights!

Can a will be changed after death in BC? The simple answer is no. Although WESA provides executors and beneficiaries with several posthumous remedies, preparing a legally valid will from the start is essential in ensuring your wishes are honored, your loved ones are provided for, and your estate is administered efficiently according to your wishes.

We understand that navigating the legal requirements for drafting a will can be challenging on your own. If you have a complex estate and you want to ensure that your clear instructions are carried out, we offer a 30-minute free consultation to address your concerns. We look forward to speaking with you!

Have questions about a topic?

Onyx Law Group represents clients in family law, estate and trust litigation, estate planning and probate matters. Consult with our experienced team at 
(604) 900-2538


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