UPDATE – this post is now out of date. Please see our updated post of May 21, 2020
As discussed in a previous post on this blog; while some other provinces have relaxed the in-person witnessing requirements for estate planning documents at this time, British Columbia has not. If you get creative, will-makers can fulfil these requirements while still respecting social distancing protocols. However, for those required to self-isolate strict compliance will be impossible. They simply won’t be able to execute their Will in the presence of two witnesses. What’s a would-be will-maker to do?
Will-makers can take some comfort in the fact in British Columbia the court can order that a document which represents the testamentary intentions of a deceased be recognized as an effective Will even if it is not formally valid.
In doing so, the court’s analysis is fact-specific. The document needs to be authenticated and must record a deliberate or fixed and final expression of the deceased’s intention as to the disposal of their property. Generally speaking, the more the document looks and sounds like a Will, and the closer it complies with the formal validity requirements of a Will, the more likely it is to be recognized.
So if execution of a Will in the presence of two witnesses is impossible due to quarantine, or otherwise unsafe, so long as the would-be Will expresses the deceased’s testamentary intent it could still be recognized on their death. This does, however, involve considerable uncertainty and expense. Will-makers should try to comply with the formal validity requirements to the extent possible and note the extenuating circumstances of the COVID-19 pandemic in their Will. Those who put together a “make-do” Last Will and Testament during the COVID-19 crisis should attend to having it properly executed as soon as possible after the crisis has abated.
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Do you want expert advice in preparing a Will? Do you already have an estate plan, but feel it needs a refresh? Owen Bird’s Wills and estates lawyers are here to help. We provide our clients with personalized advice, working closely with individuals to draw up Wills and estate plans that help them achieve their personal and financial goals.