Is a handwritten Will legal?
In BC, a Will is not legal unless it complies with the legal requirements around signing Wills. Wills can be handwritten, so long as they comply with these requirements.
A Will must be signed at its bottom, and witnessed by two independent people (not spouses, beneficiaries, or spouses of beneficiaries). Section 37 of the Wills, Estates and Succession Act SBC 2009, c.13 (“WESA”) sets out the specific requirements which must be met.
For example, if you just write out “I want my kids to have everything”, that’s not actually a Will because it wasn’t signed in front of two witnesses, following the proper signing requirements.
Can my handwritten note be made into a Will?
WESA now allows a judge to make a court order that declares your records, documents, writing or markings on a Will to be your “testamentary intentions”, and those records, documents, or writing or marking on a Will could constitute an effective Will.
Great! So I’ll just leave a note and my family will figure it out, right!?
First of all, because the handwritten note you left behind doesn’t automatically qualify as a Will, your family will need to take it to court in order to be able to rely on it. That court application is MUCH more expensive than a traditional probate application, because your family will have to provide information to the judge that they can rely on, that sets out why they should declare these writings to be your last Will.
Secondly, how will the judge know that you meant those scribbles to constitute your last Will? What differentiates these particular notes from any other notes you might have written down?
Lastly, your notes might set out what you want to have happen with your assets, but they might not appoint executors or guardians, or give your executor appropriate powers, each of which are important pieces of a Will.
The less you ask a judge to determine, the better for everyone.
So how do I make sure I get it right?
If you want to make your own Will yourself, do your research first.
Know your limitations – if you find legal issues daunting, or your eyes glaze over when you read legaleze, consider hiring a lawyer or BC Notary to help you make your Will.
Tags: estate, handwritten will, will