As we continue to follow the guidance given by our public authorities by practicing social distancing, many people are inquiring about whether it’s still possible to make or update their estate plan.
Although scheduling an in-person meeting with your lawyer may not be possible, many lawyers in British Columbia – including our team at Hammerberg – are equipped to work remotely and can be reached by phone, video conference and email. It is possible to carry out your estate planning from the safety of your home and create or alter your Will to reflect your true and most current wishes. Below is an overview of the process.
In order to prepare your estate plan, we recommend contacting a lawyer to initiate the process. If you already have a Will in place and want to make changes, you should ensure that you have a copy of it to provide to your lawyer. If it is your first time meeting with a lawyer, be prepared to provide some necessary information so they can properly advise you on your estate plan. Most firms have a set form of questions used to begin the process and gather the necessary information required to draft a Will. The lawyer will ask you to consider matters such as who you would like to act as an executor, discuss what assets you have and how you wish for them to be inherited upon you death. It is important to be prepared with the full legal names and addresses of anyone you wish to mention in your will and copies of ownership documents for your assets.
Execution of the Will
There are set execution requirements in order for a Will to be legally binding. In British Columbia, a Will must be witnessed by two adults at least 19 years of age. The two adults must be present in the same room and witness your signature at the same time, they too must sign your Will. If the Will is not executed correctly, it can be found to be invalid.
If you are social distancing at home with your family, it might be difficult to find two witnesses. Ideally, the witnesses should not be mentioned in the Will at all because any gift granted under the Will to a witness would be presumed void and fail. Therefore, spouses or immediate family members would not be appropriate witnesses. If you cannot arrange to sign the Will before independent witnesses, then your lawyer will discuss further options with you.
No Witnesses – No Will?
Upon application to the BC Supreme Court, and under the Wills Estates and Succession Act of British Columbia (the “Act”), a Will that does not meet the legal requirements of execution could be upheld as a valid testamentary document in certain circumstances. A lawyer would work closely with you to ensure that all steps possible are taken to provide sufficient evidence to prove that the Will represents your valid testamentary intentions, notwithstanding that it doesn’t meet the legal requirements for execution. This evidence could be used later if it is necessary to apply to the court for an order that the Will be fully effective, as though it had been executed in compliance with the Act.
If a Will has not been validly executed due to the social distancing restrictions, it can be properly executed before independent witnesses once the restrictions are lifted. Having a properly executed Will saves your estate the time and expense of having to make a court application after your death to cure the deficiency in the execution of your Will.
Although we are dealing with an unprecedented global crisis, the law provides you with options that allow you to carry out your estate planning regardless. We encourage you to speak with one of our Estate Planning lawyers to initiate the process and receive advice specific to your circumstances.