BC Legal Wills (Part 1): Introduction

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British Columbia Legal Wills



Last Will and Testament (British Columbia)

This Will allows you to:



Introduction to Wills in BC

Now, in the next series of blogs, I’ll be discussing Wills in beautiful B.C. So lets get started, shall we?

You’ve heard it many times. You need a Will! But what is a Will and why do you need one? What legal surprises (and headaches) await your loved ones if you don’t have one? Is a lawyer required to draft or witness a Will? What about International Wills? What are some of the standard clauses that you’ll find in a Will? These and other questions are common, but not always answered. Sometimes, a lack or absence of communication can result in costly mistakes and even litigation. This DL Guide will help shed some valuable insight into these and other questions that may come to mind when you’re getting serious about dealing with Wills in British Columbia.

What is a Will?

A “Will” (also referred to as a “Last Will and Testament”) is a legal statement of a person’s wishes concerning the disposal of his or her property after death. In the Will, the person who makes it (called a “Testator” if they are a man or a “Testatrix” if they are a woman) names another person (called an “Executor”) to be responsible for administering their estate when they die. A Will also allows a Testator / Testatrix to appoint a “Guardian” for their minor children (i.e. under 19 years old) and “Custodian” of their property: section 50(1) of the Infants Act, R.S.B.C. 1996, c. 223.

Note: “Guardianship” is best thought of as parenting. It basically deals with the right a person has to play a full and active role in a child’s life. This may involve making decisions on behalf of, and being responsible for, the child with respect to things like: food, clothing, shelter, education, health care, and discipline.

Now, according to section 1(1) of the Wills Act, R.S.B.C. 1996, c. 489, a Will also includes a “Codicil”. A “Codicil” is a document that cancels certain parts of your Will or adds new parts to it and which must be read together with your Will as one document. It’s important to note that, a Will on speaks from death; in other words, it only takes effect once you die. This can have significant implications, for example, if you make a gift of property in your Will but then sell that property before you die!

Note: the Wills, Estates, and Succession Act, S.B.C. 2009, c. 13 has been passed by the British Columbia Legislature and will repeal and replace the Estate Administration Act, the Probate Recognition Act, the Wills Act, and the Wills Variation Act, as well as amend dozens of other provincial statutes. To allow for preparation and education, the Act will come into force on a date set by proclamation (expected in late 2012). Once in force, it will have a significant impact on wills and estate administration practice in British Columbia.

By means of background, when you die in British Columbia, your assets (e.g. money, property, business interests, etc.) are pooled together into something called an “Estate”. An Executor is appointed in the Will (and a substitute is usually appointed in case the primary Executor is unwilling or unable to perform his or her duties) and must:

  • administer the Will by paying out liabilities (e.g. taxes owed, funeral expenses, creditors, etc.);
  • manage remaining assets (e.g. selling them, gifting them, investing them, etc.); and
  • distribute the residue of the estate (i.e. the remaining funds after everything else is taken care of) to the beneficiaries designated under the Will.

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