Can a Notary Probate a Will in BC?

Estate planning is an essential part of preparing for the future, and one question that often arises is whether a notary can prepare a will in British Columbia. The answer is yes, but with certain limitations.

In a recent case, Society of Notaries Public of British Columbia v. Law Society of British Columbia, 2017 BCCA 448, the Court of Appeal for British Columbia clarified the extent of notaries’ authority to prepare wills. The issue was whether notaries could prepare wills that contained life estates or trusts where the beneficial interest vested immediately upon the testator’s death. The court ruled that wills in which the beneficial interest vests immediately but distribution of possession or legal title is postponed are not within the scope of a notary’s authority. It is important to understand the limitations of a notary’s authority when advising our clients on estate planning matters. This article will provide a thorough analysis of the topic and offer insights into how to navigate the legal landscape of will preparation in British Columbia.

Can Notary Prepare a Will in BC?

In British Columbia, notaries are authorized to draft standard Wills, provided they adhere to specific legal requirements (as mentioned below). These conditions include immediate distribution of the estate upon death and holding assets in trust for minor beneficiaries until the youngest child turns 19.

When creating a Will with a notary, the following requirements must be met:

1. The estate must be distributed immediately upon the testator’s death. This means that assets and property are to be transferred to the designated beneficiaries without any unnecessary delay.
2. If the beneficiaries are minor children, the assets should be held in trust until the youngest child reaches the age of 19. A trustee must be appointed to manage the trust and safeguard the children’s interests until they come of age.

A Will prepared by a notary must be properly executed, signed, and witnessed according to British Columbia’s Wills, Estates, and Succession Act to be considered valid.

Will-drafting authority under the BC Notaries Act

A notary’s power to prepare a will in BC is set out in s. 18(b) of the Notaries Act, R.S.B.C. 1996, c. 334.  A notary in good standing may do the following:

(b) draw and supervise the execution of wills

(i) by which the will-maker directs the will-maker’s estate to be distributed immediately on death,

(ii) that provide that if the beneficiaries named in the will predecease the will-maker, there is a gift over to alternative beneficiaries vesting immediately on the death of the will-maker, or

(iii) that provide for the assets of the deceased to vest in the beneficiary or beneficiaries as members of a class not later than the date when the beneficiary or beneficiaries or the youngest of the class attains majority;

The BC courts have previously held that s.18(b)(i) of the Notaries Act is “directed at simple wills, where the gift is distributed both legally and beneficially, immediately” and ss. 18(b)(ii) and (iii) only apply in limited situations: see Law Society of British Columbia v. MacDonald, 2013 BCSC 1204 at paras. 107−109.

Notaries’ argument for expanded scope of will-drafting authority

Reduced to its core, the notaries’ argument was that the words “distributed immediately on death” in s. 18(b)(i) should be interpreted as “vested immediately on death”. By way of example, the BC notaries argued that when a will-maker leaves real property to A subject to B having a life interest in that property, since A’s interest vests immediately, the property has been “distributed immediately” to A, notwithstanding the fact that A is not entitled to possession or use of the property until B dies.

Frankel J.A. was unable to accept the notaries’ argument. The words “distributed immediately” in s. 18(b)(i) of the Notaries Act are not synonymous with “vested immediately”. The section requires that the entire interest be distributed immediately, not simply vested. Distribution and vesting have long been treated as distinct concepts in wills and estate matters. For example, Frankel J.A. noted that it is clear from other BC laws (such as the Wills, Estates and Succession Act) that “distribute” and its variations are used to refer to the act by which the legal and beneficial interest in assets are given out or delivered to those entitled to receive them. The Legislative Assembly used the expression “distributed immediately” in s. 18(b)(i) of the Notaries Act in its ordinary sense, namely, to describe a will in which the will-maker directs the assets of the estate to be immediately given out or delivered to those entitled to receive them; in other words, a will that directs the immediate transfer of both the legal and beneficial interest in the assets of the estate to the beneficiaries. A will in which the beneficial interest vests immediately on the death of the will-maker, but distribution of possession or legal title or both is postponed, is not within the scope of s. 18(b)(i) of the Notaries Act.

The bottom line: Can a notary prepare a will in BC?

The answer to the question “Can a notary prepare a will in BC?” is yes; however, notaries are limited to drawing the three “simple” types of wills set out in the Notaries Act. Notaries are not authorized to prepare a will in BC if the will is to contain life estates or trusts.

Need help preparing a Will? The estate planning team at Onyx Law Group can ensure that your estate is in order, which will put your and your family’s minds collectively at ease. We have the knowledge and experience required to craft a Will that accurately reflects your long term wishes for your family’s legacy. Contact us today to discuss the preparation of your Will.