What should I know about challenges to wills based on drafting errors in British Columbia?

Those looking to create a will must follow specific legal standards to help better ensure its validity. The Wills, Estates and Succession Act (WESA) outlines these requirements, emphasizing the need for precision and adherence to formalities. Failure to meet these standards can lead to challenges against the will, often centred on drafting errors or non-compliance with formal requirements.

Common drafting errors leading to will challenges

Drafting a will requires meticulous attention to detail. Errors during this process can significantly impact the validity of the will, leading to potential disputes and legal challenges. Examples of drafting errors are:

• Improper execution: The will-maker must sign the document in the presence of two witnesses (19 years of age or older) present at the same time, who must also sign the document.
• Ambiguities in language: Unclear language can lead to misinterpretation of the will-maker’s intentions, causing disputes among beneficiaries.
• Exclusion of required information: Omitting essential details, such as the full identification of beneficiaries or the complete description of assets, can lead to parts of the will being unenforceable.

Note that this is a very small and non-exhaustive example of errors, used to highlight the necessity for thorough review and adherence to legal requirements, to mitigate the risk of future legal challenges.

Exceptions to strict compliance

While the law is strict about the formalities when making a will, there are exceptions that allow a court to recognize a will that does not meet all requirements. This flexibility plays an important role in situations where the will-maker’s intentions are clear but minor errors exist. Under certain conditions, the court has the discretion to “cure” a deficiency in a will if it is clear that the document represents the will-maker’s true intentions. In some cases, if a will substantially complies with legal requirements and clearly conveys the will-maker’s intentions, the court may deem the will valid despite these minor lapses. These exceptions prioritize the will-maker’s intentions over rigid adherence to formalities, helping to better ensure that the court honours the true wishes of the will-maker.

Legal impacts of will challenges

A challenge to a will based on drafting errors or failure to adhere to formal requirements can have significant legal repercussions, including, but not limited to:

• Delays in estate administration: Disputes over the validity of a will can lead to prolonged court proceedings, delaying the distribution of the estate to the beneficiaries. This not only increases the financial burden due to legal costs but also extends the emotional stress on all parties involved.
• Financial implications: Legal challenges can erode the estate’s value as estate funds may be used to cover additional costs. This reduction in estate value affects the amount that beneficiaries receive.
• Relationship strains: Disputes over a will can strain relationships among family members and other beneficiaries. Such conflicts can lead to lasting rifts and may permanently damage familial ties.

If you are considering creating a new will, or have questions about the formal requirements of an existing will, it is highly recommended to consult a qualified legal practitioner in order to avoid drafting errors and their consequences.