Wills and Estates Law in British Columbia governs how a person’s assets are managed
and distributed after their death. Whether planning your own estate or dealing with the
administration of a testator’s such as a loved one’s, understanding the legal framework
is helpful to ensure that wishes are respected and obligations are fulfilled.
The primary legislation is the Wills, Estates and Succession Act (“WESA)”, SBC 2009, c 13.
Key Issues in Wills and Estates Law
- Validity of a Will
For a will to be valid in BC, it must be in writing, signed by the will-maker, and witnessed
by two individuals (s. 37, WESA). However, under s. 58 of WESA, the courts have a
curative power to recognize documents that do not strictly comply with these
requirements, if it can be established that they are the will-maker’s final testamentary
intentions. For reference, it is recommended to review Re Hadley Estate, 2017 BCCA
311, where the BC Court of Appeal affirmed the courts’ discretionary power under s. 58
to validate an unsigned and unwitnessed document as a will. - Wills Variation
Section 60 of WESA, provides that spouses and children of a deceased person may
apply to the court to vary a will if it does not make “adequate provision” for their proper
maintenance and support. The court may order redistribution of the estate to achieve a
more just outcome. The key word here is just – for example, if a will does not provide for
children who were in a happy, loving relationship with the now deceased parent, but it
somehow provides almost entirely for a never mentioned in day-to-day life events,
nephew or niece, there would be concerns about the validity of that intention. For
example, in Tataryn v Tataryn Estate, [1994] 2 SCR 807, the Supreme Court of
Canada emphasized the dual objectives of testamentary autonomy and moral
obligations owed to family members. - Intestacy
If a person dies without a valid will, their estate is distributed according to the intestacy
provisions in Part 3 of WESA. The default scheme prioritizes spouses and children, but
may lead to outcomes that do not reflect the deceased’s actual wishes, highlighting the
importance of proactive estate planning.
Probate and Estate Administration
Probate is the legal process of validating a will and granting authority to the executor to
administer the estate. If there is no will, the court may appoint an administrator under
Rule 25-3 of the Supreme Court Civil Rules, or a trusted individual may apply to be
the executor themselves. Executors and administrators possess a fiduciary duty to act
in the best interests of the estate and its beneficiaries. They may be able to charge the
estate for the work they are doing as well, within reasonable limits.
Estate planning is not just about distributing assets—it’s about minimizing conflict,
protecting vulnerable family members, and ensuring your legacy is managed according
to your wishes. Our firm can help you draft a legally sound will, apply for probate, or
navigate complex estate disputes. Give us a call today for any questions associated
with estate planning.