It is important for you to make a will when you are capable of doing so. This means that you are in good health and that you are mentally capable. If you are mentally incapable, you are not able to make a will. Mental capacity requires the following:
- you must understand that you are making a will and disposing of your property
- you must not have a mental disorder (e.g. delusions, dementia)
- you must not be a minor (under age of 19) except in certain circumstances
- you must realize what is in the will and agree that is what you want (knowledge and approval)
- you must make your will of your own free choice and without any undue influence
The other important fact to remember is that you can make changes to your will as significant life events occur (i.e. birth, death, divorce, separation). If you have a will, it is important to review it on a regular basis and make changes as is necessary. Your will can be altered by executing a new will (this will usually revoke the earlier will), executing a codicil or making an interlineation.
By law, there are certain requirements for a will:
- The will must be in writing (holographic wills are not recognized of British Columbia except for military forces) The will must be signed at its end by the testator or in their name by another person in their presence and under their direction
- The testator’s signature must be made or acknowledged by them in the presence of two or more witnesses both present at the same time
- Two or more witnesses must sign the will in the presence of the testator (exception for individuals on active service with the Armed Forces or seaman in the course of a voyage)
- The testator must be at least 19 years old unless they are married, or in the Armed Forces
Neither a beneficiary nor a spouse of the beneficiary should be an attesting witness. This will not render the will and valid, however, any gift in favour of the beneficiary/witness or their
spouse will be void. (This may not apply if there are more than two witnesses).
Neither an executor nor their spouse should be an attesting witness. This will not render the will invalid, however, if the will contains a “charging clause” which permits the executor to charge professional fees, the charging clause will be rendered void. (This may not apply for more than two witnesses).
It is highly recommended that each party initial each page of the will other than the signature page.
Your will should be dated. Your witnesses must be at least 19 years old and mentally capable. See you legal advisor to assist you in moving forward with this very important part of you estate
plan and obtain the legal advice you need to leave dispose of your estate as you wish and ensure all legal requirements are met.
Disclaimer
The information provided on this website is merely an informative guide and should not be relied upon for legal advice. It is intended to provide general information only. It is recommended that you see a lawyer about your particular legal situation and request legal advice.
