Signing the Will
It is a good idea to meet with the client to review the will before execution. Meeting your client alone is particularly critical if the client was accompanied by someone else during your initial meeting to take instructions.
A. Attestation and Witnesses
The rules for execution of wills are set out in section 37 of WESA. Two adult witnesses are required, though s. 37 (2) permits the court to cure a non-compliant execution of a will and to declare a gift to a beneficiary who acts as a witness or whose spouse acts as a witness to be valid s. 40 (2)).
Here is an example of execution wording:
We were both present, at the request of Robert Smith, when he signed this will. We then signed as witnesses in his presence and in the presence of each other.
See s. 43 of WESA, which preserves the presumption in s. 11 of the Wills Act regarding testamentary gifts to witnesses being void. Note, however, that pursuant to s. 43(4) of WESA, such gifts may be given effect subject to a successful court application.
Remember not to allow beneficiaries, executors or their spouses to witness the will for the reasons discussed in this module.
B. Wills Notices
A Wills Notice can be filed with BC Wills Registry.
Even though there is a charge for filing the notice, explain to your clients that, without filing such a notice, the existence of their most recent will may never come to light.
Executors and beneficiaries often advise their lawyer that the will-maker indicated just before his death that he was thinking of changing his will, but the will can’t be located. This could leave you in the unenviable position of having to contact every lawyer and notary in town to ask whether the deceased prepared a will at their office. Such issues would not arise if Wills Notices were filed for every new will or codicil.