Practice area

Making a will in British Columbia

A will does three things. It names the person who winds up your affairs, it says who receives what is left, and, if you have children who are still minors, it says who you want to raise them. Without one, provincial legislation decides all three, and it decides them the same way for everybody. This page sets out what goes into a will in British Columbia, what we need from you, and where wills most often fail the people they were written for.

Who this is for

Wills

You have no will, or the one you have was written before a marriage, a separation, a child, a business or a property that has changed everything in it. It applies whether your affairs are simple or not. A simple estate with a clear will is far easier on the people left behind than a complicated one, and a complicated estate with no will is the hardest of all.

The work

What we do

01Take your instructions in a meeting, on your own. Where we are preparing wills for you and your spouse we take instructions from each of you separately, because a will is one person's document and the law requires that it reflect that person's own wishes.
02Work out what is actually in the estate. Property held in joint names, and registered accounts and insurance with a named beneficiary, pass outside the will altogether. What a will controls is often smaller than people assume, and planning starts with knowing which is which.
03Settle the appointments: an executor and an alternate, and a guardian for any child who is still a minor. We talk through what each role involves before you choose, because the person closest to you is not always the person who should administer an estate.
04Draft the will: specific gifts, the residue, what happens if a beneficiary dies before you, and any trust for a child, for a beneficiary with a disability, or for a beneficiary you would rather not hand a lump sum at a particular age.
05Say where a claim is likely. In British Columbia a spouse or child who is left out, or left less than a court thinks adequate, can apply to have the will varied. Where that risk exists we say so, and we record your reasons, because those reasons are what a court reads later.
06Where you hold shares in a private company, consider a separate will for the corporate assets, so that they do not have to go through probate with everything else.
07Supervise the signing so the will is validly executed. The formalities are strict, and a will that fails them may be rescued by a court or may not.
08File a wills notice with Vital Statistics if you want one, so the will can be found when it is needed, and tell you where the original should be kept and why it matters.

Your part

What we need from you

Gathering these early is the single biggest thing you can do to keep a file on schedule.

Two pieces of government-issued identificationOne has to carry your photograph. Bring them to the meeting.
Any will you already haveEven one you intend to replace. What it says, and where the original is, both matter.
Your family, in fullYour spouse, any former spouse, every child with their age, and any agreement or order for support. A spouse or child the will does not deal with is the most common source of a claim against it.
What you own and owe, by categoryProperty addresses and whose names are on title, accounts and investments by type, insurance and pensions, business interests, and the debts against them. Not statements yet, and not values to the dollar: what exists, and roughly where.
Names and contact details for everyone you are appointingExecutor, alternate, and guardians. Full legal names as they appear on identification, and a way to reach each of them.
Any agreement that binds your estateA marriage, cohabitation or separation agreement, a shareholders' agreement, a buy-sell agreement. Each can limit what the will is free to do.

Risk

Watch for

The things that actually derail this kind of file, rather than the ones that sound alarming.

A will that a marriage or a separation has changed

The rules for what a marriage, a separation or a divorce does to an existing will were rewritten when British Columbia's succession legislation was replaced, and most people's assumptions come from the old rules. A separation can undo a gift to a spouse and their appointment as executor; a later marriage does not undo the will. Neither is a substitute for rewriting it.

Assets the will does not control

Property held in joint tenancy passes to the surviving owner. A registered account or an insurance policy with a named beneficiary passes to that person. A will that divides everything equally among three children, where one of them is the joint owner of the house, does not divide anything equally. We map what is in the estate before we draft what happens to it.

A claim to vary the will

A spouse or a child can apply to the court to vary a will that does not make adequate provision for them, and the court decides what adequate means. Leaving someone out is your decision to make, and it is a decision the court will look at, so the reasons are recorded at the time rather than reconstructed afterwards.

An executor who cannot do the job

An executor who lives outside the province, who is older than you, or who is one of two people who do not speak to each other, is a choice that will have to be revisited by somebody else at the worst possible time. Name an alternate, and choose for organisation and availability rather than for closeness.

Questions

Common questions

Do I need a lawyer to make a will?

No. A will you write and sign yourself, in front of two witnesses who also sign, can be valid. What a lawyer adds is the questions: whether the property you are giving away is actually in your estate, whether a spouse or child has a claim you have not planned for, whether the executor you have chosen can do the job, and whether the document still does what you mean if a beneficiary dies first. Getting one of those wrong costs your family rather than you.

What happens if I die without a will?

Provincial legislation sets out who receives the estate, in fixed shares between a spouse and descendants, and it makes no exceptions for what you would have wanted. Somebody has to apply to the court to be appointed to administer the estate, which takes longer than probating a will, and nobody has been named to raise your children. It is the outcome a will exists to avoid.

Can I leave one of my children out?

You can. A child who is left out, or left less than a court considers adequate, can apply to have the will varied, and the court weighs your reasons against what it considers a parent's obligations. That is why we record the reasons at the time. Whether the exclusion holds depends on the circumstances, and it is a conversation to have honestly before the will is drafted rather than in court afterwards.

Does my spouse's will have to match mine?

No, though most couples make mirror wills that do. Each is its own document and either of you can change yours at any time without the other's agreement. A mutual wills agreement, in which each of you promises not to change your will after the other dies, is a different and much more restrictive instrument, and not one most people want.

Where should I keep the original?

Somewhere safe, dry, and known to your executor. A copy is not a will, and proving a will from a copy is possible but slow and uncertain. A wills notice filed with Vital Statistics records where the original is kept, so that whoever searches for it after your death finds it, and we file one if you want it.

Talk to us about your file

We quote your file in writing before we start work, so the number on your statement of adjustments is the number you agreed to.

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