Edward F. Macaulay
A person’s will contains a great deal of valuable information that has a very real impact on their legacy and their loved ones. But if it is invalid, the courts can set it aside and make decisions following the law rather than the individual’s wishes.
Whether you are creating a will or you have concerns about the validity of a loved one’s will, knowing some common red flags that can invalidate the document can be crucial.
Red flag: It’s not in writing
Telling loved ones about what you would want if you become incapacitated or pass away can be a good way to help them understand your wishes. However, a discussion is not a replacement for a written will.
Per British Columbia laws, a will must be in writing to be valid. And unlike other provinces, BC courts do not recognize holographic wills, which are wills a person handwrites on their own without witnesses to sign them.
While there are exceptions and remedies for these issues, the best way to avoid challenges is to have a will in writing and signed by witnesses.
Red flag: It excludes a child or spouse
The law requires parties to provide for their spouse and children adequately. If a will does not reflect this, the courts can vary the will and order that these parties receive a share (or a larger share) of someone’s estate.
If you or a loved one has a legitimate reason for excluding these parties, talking to an attorney about how to do this without creating validity issues can be wise.
Red flag: Doubts about a person’s mental capacity
Serious illnesses, brain trauma and other elements can dramatically affect a person’s mental health and capabilities. However, this can happen gradually, which means it is not always obvious when a person lacks the capacity of mind to create or change a will.
Because of this, there could be disputes over a person’s mental fitness if they make unexpected or unusual decisions regarding their will. Preventing this can involve proving mental capacity when creating or changing a will.
These red flags can and should raise concerns about whether the courts can enforce a will or must set it aside. Knowing about them and how to remedy these issues can help you and your loved ones avoid will contests.
