Family, Estates & Trusts 

FREE CONSULTATIONS

| ,

How to Make a Will in British Columbia


A Will is one of the most important documents you’ll ever make. It doesn’t matter if you have a simple estate or a complex estate with many assets—a Will is essential if you want a say in what happens when you die.

If you die without a Will, you lose control over decisions such as who will handle your estate, who inherits from your estate and when, and who will step in to raise your minor children. The cost of administering your estate can also be higher if you die without a valid Will.

When you understand the rules and laws that apply, making a Will can be a relatively simple process that provides immense peace of mind. Here is what you need to know about how to make a Will in BC.

What is a Will?

What is a Will?

A Will is a legal document that serves as a roadmap after your death. It sets out your instructions for what you want done with your property and money after you pass away and who you want to benefit from your estate. If you have minor children or disabled loved ones, your Will can provide your instructions to ensure they receive proper care and support.

You also get to appoint the executor or executors of your choosing. Your executor is the person responsible for carrying out the instructions in your Will and settling your affairs. A Will is usually one part of a good estate plan, alongside other important documents such as a Power of Attorney and Representation Agreements.

Legal Requirements for a valid Will in BC

Legal Requirements for a valid Will in BC

If your Will doesn’t meet certain legal requirements, it is not enforceable. That can lead to costly litigation and your estate being distributed in a way you did not intend. A lawyer can help ensure that your Will is legally valid, which will minimize the likelihood that your Will winds up in estate litigation.

Age requirement

BC law states that you must be 16 years of age or older to make a valid Will. That means minors (those who are under the age of 19) can make a Will, as long as the people who witness the signing of the Will are over the age of majority (19+). A Will made by anyone under the age of 16 is not valid.

Mental Capacity

You must be of sound mind to make a valid Will in BC. A will maker must have a certain level of mental capacity, known as “testamentary capacity” to create a Will. The issue of capacity can be complex. A person may be mentally capable to make a valid BC Will even if they are experiencing cognitive deterioration or isolated memory deficits.

Formalities for a valid Will

For a Will to be valid, it must meet formal requirements as set out in section 37 of BC’s Wills, Estates and Succession Act (“WESA”). The Will must be:  

  1. In writing;
  2. Signed by the will maker; and
  3. Signed in the presence of two witnesses who are over the age of majority who also sign the Will.

If your Will does not meet those formal requirements, it is an invalid Will and of no force and effect unless an applicant is successful in obtaining a Court order pursuant to section 58 of WESA that the Will is cured of its deficiencies, or the Will is valid pursuant to the jurisdiction that it was made pursuant to section 80 of WESA (e.g., if you made your Will outside Canada in a jurisdiction that has different formal requirements).

Choose your Will format

Choose your Will format

Handwritten Wills

Are handwritten Wills legal in BC? No, strictly speaking handwritten or “holograph” Wills are not considered valid under BC law. Holograph Wills usually fail to meet the formal requirements discussed above (e.g., not signed or properly witnessed).

It may be possible for your family members to bring a court application asking the Court to give effect to a handwritten Will after your death, but there are no guarantees that the Court will find the document valid as a Will, to say nothing of the extra time and expense your family will have to go through to get that declaration. If a handwritten document is declared to not be a legal Will, the person’s estate is treated as though they died without a Will.

Online Wills and DIY templates

Can I prepare my own will in BC? Yes, DIY will kits and online will platforms can be used to write a Will in BC. These options are typically inexpensive and may be suitable for people with very simple estates who do not want to get legal advice.

The major drawbacks of these options: they are one-size-fits-all and may not apply the way you thought they would. If you own a business, own property outside of BC, or want to disinherit a family member, for example, a DIY will or online platform is not for you. Keep in mind that these types of Wills are still required to be properly signed and witnessed to be legally valid.

Lawyer drafted Wills

The best way to ensure that you leave a valid Will is to have it prepared by a legal professional. Estate lawyers have specialized knowledge of estate law, so they can create a legally valid Will that achieves your estate planning goals. Skilled estate lawyers can also advise you on ways to minimize estate taxes and avoid the probate process.

Your lawyer will meet with you to discuss your estate plans and wishes, advise you of any risks or issues you may not have thought of, and provide you with individualized legal advice. Your estate lawyer will then prepare your Will with custom clauses to ensure your estate plan operates how you intended.

Appoint key roles

Appoint key roles

Executor of your estate

Your executor has a big job and should be someone you trust. The executor is the one who acts on your behalf after your death. They should be organized and reliable. Executor’s duties include arranging your funeral, locating all your property, paying your debts, filing your income tax return(s) and distributing your estate in the way you instructed in your Will.

Most people appoint a family member or close friend as their executor. You can appoint more than one person (co-executors), and name alternates in case your first choice is not available to act as executor. You can also ask a lawyer, a notary public, or a private trust company to act as your executor.

Guardian for minor children

When you prepare your Will, you can choose the person or people you want to be guardian of your minor children (i.e., kids under the age of 19). This is especially important if you are a single parent or the child’s other parent predeceases you.

If you die without a valid Will or fail to appoint a guardian in your Will, the Court will choose a guardian for your minor children. Having a Will in place ensures that your children will be looked after by someone you love and trust. In your Will, you can also ensure that your estate provides financial security for your children.

Identify and distribute assets

Identify and distribute assets

Listing all assets

An important first step in making a Will is to think about what you own and how you own it. Ideally, you should make a list of all your property (e.g., real estate, vehicles, bank accounts, investments, art, jewelry, business interests) and their approximate values.

Then you should investigate how you own that property. For example, if you own your home as joint tenant with your spouse, you can’t gift ownership of the home to someone in your Will. The same is true for joint bank accounts, which pass outside of your estate to the surviving joint owner.

Look into registered investments and insurance policies, which also pass outside of your estate, to ensure that the beneficiary designations in these assets are accurate and accord with your overall estate plan.

Types of bequests

Think about the who, what, and when. Who do you want to inherit and at what age? What do you want each beneficiary to receive? You can set up trusts in your Will for minor beneficiaries so that they don’t receive their inheritance until a later age (e.g., age 25). If you don’t (or if you die without a Will), any minor beneficiary will inherit when they turn 19. You can also set up trusts for family members who are not good with money, or for disabled family members so that they don’t lose eligibility for disability benefits.

You will need to decide how the residue of your estate should be divided (that is, what is left after funeral expenses, debts and taxes are paid from your estate). Many people choose to leave the residue of their estate to their spouse, and if their spouse predeceases them, to their children in equal shares. But there are so many options when it comes to gifts in a Will. You can make specific bequests in your Will if you want to. For example, your antique car to your nephew; $10,000 to your favourite charity, then the residue of your estate divided among your children.

Special considerations for blended families and common law spouses

If you and your partner have lived together in a “marriage-like” relationship for more than two years, or less than two years but you have a child together, you are considered spouses. BC law treats common law spouses the same as married spouses, meaning that a common law spouse is entitled to an inheritance. If a common law spouse dies without a Will, the surviving spouse inherits in accordance with BC’s intestacy rules. If a common law spouse dies leaving nothing or not enough in their Will to their common law spouse, the surviving spouse can make a claim against the estate.

Blended families give rise to unique estate planning issues. A blended family is typically one involving a second marriage where the partners have children from previous relationships. One spouse may want to leave more to their own children than their stepchildren. The spouses may want some kind of guarantee that their children from the first marriage will inherit after their new partner dies. Skilled legal professionals can use estate planning tools to achieve those goals.

Draft the Will

Once the key information has been gathered and choices have been made with respect to executor, guardian, bequests and beneficiaries, the Will can be drafted. As discussed above, a lawyer drafted Will is the best way to ensure your Will is valid, enforceable, and effective. Your estate lawyer will use custom clauses and specialized language in preparing your Will, and they also ensure your Will is witnessed correctly and signed.

You may be wondering “How much does it cost to make a Will in BC?” The answer depends on your unique life situation. Estate lawyers charge a fee that reflects the time, skill, and complexity involved in making your Will. Most lawyers offer free estimates, so feel free to shop around and compare prices.

Safeguard your Will

After your Will is prepared, you want to ensure it is safe and that a physical copy can be located after your death. There are a few options for safeguarding your Will. For example, you can store it at home in a safe, you can keep it in a safety deposit box, you can digitally store an e-signed Will (i.e., one that does not have a wet ink signature but rather electronic signatures, which can be a legal Will if prepared in compliance with BC law) or your estate lawyer may arrange to store it for you at their office. You should tell your executor(s) where your Will is stored.  

Many people ask, “Does a Will need to be registered in BC?” The answer is no because registration is voluntary. For a small fee, you can register a “wills notice” with the BC Vital Statistics Agency that sets out who made your Will and where it is stored.

Keep your Will updated

Now that your Will is in place, you can forget about it, right? Not so fast. You should have a look at your Will every few years to ensure that it still reflects your wishes. You should also revisit your Will after any significant changes in your life, such as marriage, separation or divorce, birth of children or grandchildren, starting up or buying into a business, and death of an intended beneficiary. It may be that you need a new Will, or that you can address any changes using a Codicil to your original Will.

Wills and Estate Planning Help for British Columbians

If you are unsure of how to make a Will in BC, reach out for trusted advice. A Will is a legal document and it’s so important that you consult with a lawyer when you create legal documents. 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 reflects your wishes. Contact us today to discuss the preparation of your Will.

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

TELL US HOW WE CAN HELP

(604) 900-2538

Contact Us
  • We were made to feel valued and heard. Integrity, competence and a passion for justice definitely describes Onyx. They are also caring, compassionate and have a good sense of humour.

  • Thanks to Onyx’s straightforward approach, this litigation was resolved with the best outcome for myself and my children. Although this ordeal was emotionally trying, we can get on with our lives, without added worry and stress.

  • I chose the right law firm and I know our future is on the proper course because of Onyx. I wouldn’t hesitate to tell anyone who needs good legal representation to take my words to heart.

We will find the best way to help you

Vancouver

650 West Georgia Street
Suite 1215 - The Scotia Tower
Vancouver, BC  V6B 4N9

T (604) 900 2538
F (604) 900 2539

reception@onyxlaw.ca

New Westminster

26 Fourth Street
Suite 100
New Westminster, BC  V3L 5M4

T (604) 900 2538
F (604) 900 2539

reception@onyxlaw.ca

Kelowna

1631 Dickson Avenue
Suite 1100
Kelowna, BC  V1Y 0B5

T (604) 900-2538
F (604) 900-2539

reception@onyxlaw.ca

The information on this website is for general information purposes only. Nothing on this site should be considered legal, financial, tax, medical, or any other professional advice.

Powered by GLP Marketing

Copyright © Onyx Law All Rights Reserved