Estate planning · Wills
A will is the document that decides what happens to your estate, who is in charge of administering it, and what your wishes are for any children in your care. Drafting a will is mostly about making clear, durable choices — and recording them in a way that the BC Supreme Court will give effect to.
What a will should cover
Specific gifts (a particular item or amount to a named person), the residue of the estate (everything else, divided as you direct), and alternate beneficiaries if a primary beneficiary predeceases you.
Your executor (with an alternate). The person who applies for probate, pays your debts and taxes, and distributes the estate. Choose someone willing, capable, and (ideally) someone who is likely to outlive you.
If you have minor children, your will can name a guardian to take responsibility for them if both parents die. The Court can review the appointment if challenged, but the testator's stated preference carries weight.
Testamentary trusts — created by the will and operative after death — for minor children, beneficiaries with special needs, or beneficiaries you want to receive distributions over time. Drafting these well is the difference between a useful trust and a trust that creates ongoing problems.
Where a will treats children or close family members unequally — common in blended families, family businesses, or where lifetime gifts have already happened — recording the reasons in writing (in the will or in a separate memorandum) helps the executor defend the disposition against a wills variation claim.
Wills variation in BC
BC's Wills, Estates and Succession Act (WESA) allows a spouse or adult child of the will-maker to apply to the BC Supreme Court to vary a will if they were not adequately provided for. The standard the court applies is whether the disposition was "adequate, just, and equitable" in the circumstances.
Wills variation claims are an important consideration in BC drafting, because the court has broad authority to rewrite the disposition if the claim succeeds. Several drafting choices can reduce the risk:
We draft every will with these considerations in mind, and we discuss with you whether any specific provisions are advisable in your situation.
Frequently asked
Under BC's Wills, Estates and Succession Act (WESA), a will must be in writing, signed by the will-maker (the testator) at the end of the document, and signed by two witnesses who watched the will-maker sign. The witnesses must not be beneficiaries under the will (or spouses of beneficiaries) — if a beneficiary witnesses, their gift may be void. WESA also gives the BC Supreme Court authority to validate documents that do not meet all the formalities, where there is clear evidence of testamentary intent, but relying on that backstop is not a strategy.
Legally, yes. Practically, the risk is that small drafting choices have outsized consequences after death. Common kit-will problems we have seen: ambiguous beneficiary descriptions, gifts that fail because the asset no longer exists at death, executors named who cannot or will not act, missing residue clauses, witnesses who are also beneficiaries. Each of these can require a court application or litigation to resolve — the cost of which usually exceeds the cost of a properly drafted will many times over.
An executor (sometimes called a personal representative) is the person responsible for administering the estate after death — applying for probate, paying debts, filing tax returns, distributing the estate. A beneficiary is a person who receives something under the will. The two roles can overlap (a spouse who is the sole beneficiary often also serves as executor), but they are distinct. Choosing an executor who is willing, capable, and (ideally) likely to outlive you is one of the more important decisions in drafting a will.
It depends. Co-executors generally have to act jointly, which creates a check on either acting alone but also creates the risk of deadlock. On many estates, naming a single executor with a named alternate works better than co-executors. On larger or more complex estates, co-executors with clearly defined responsibilities can make sense. We discuss the trade-off when drafting.
WESA sets out a default scheme of distribution. The result depends on whether you have a surviving spouse, surviving descendants, or other relatives. The default rarely matches what most people would have chosen. The Supreme Court must also appoint an administrator (rather than the executor you would have named), which adds delay and cost. Dying without a will is the most expensive way to deal with an estate.
In BC, yes. Two main avenues: (1) a challenge to validity — alleging that the will-maker lacked capacity, was unduly influenced, or that the formalities were not met; and (2) a wills variation claim under WESA, where a spouse or adult child claims they were not adequately provided for. Wills variation is uniquely strong in BC compared to most other Canadian provinces. We draft with both in mind, including (where appropriate) written reasons for the gifts in the will to give the executor evidence in the event of a claim.
Whenever your circumstances change in a way that affects who should benefit, who should be in charge, or what assets exist. Common triggers: marriage, divorce, a new child, a death of a beneficiary or executor, a substantial change in financial circumstances, the purchase or sale of significant assets, or a move to or from BC. As a general default, reviewing your will every 5 years (or after any major life event) is sensible.
Most plans take two short meetings — one to gather the details, one to sign. We typically draft a will alongside a power of attorney and a representation agreement at the same appointment.