12 Common Mistakes Creating a Legal Will

In British Columbia, Canada, the rules around making a legal will are governed by the Wills, Estates and Succession Act (WESA). There are several common mistakes that people make in making a will. Here are some important issues to keep in mind for residents of British Columbia, along with ways to avoid potential problems when creating a legal will:

1. Not Updating the Will

Mistake: As with any jurisdiction, people often fail to update their will after significant life changes such as marriage, divorce, the birth of children, or the death of a beneficiary. Prevention: Ensure that your will is reviewed regularly—especially after life events like marriage or divorce—and make updates as necessary. In British Columbia, marriage automatically revokes any will made before the marriage, except where the legal will was made in contemplation of the marriage.

2. Not Naming Alternate Executors

Mistake: Failing to name an alternate executor could create a delay if your chosen executor is unable to act (e.g., due to death, illness, or conflict). Prevention: Always name a backup executor. Discuss the role with your chosen person beforehand to make sure they’re willing and able to serve. Ensure that your executor understands the duties involved.

3. Witnessing the Will Incorrectly

Mistake: In British Columbia, your will must be signed by you in the presence of at least two witnesses, who are both present at the same time. The witnesses must also sign the will, and they must not be beneficiaries under the will. Prevention: Follow the legal requirements carefully. Ensure that your witnesses are not beneficiaries of your estate, and that the signing process is done according to the rules set out by the WESA.

4. Not Considering Family Law Implications

Mistake: If you are married or in a common-law relationship, your spouse may have certain rights to your estate. These rights are legal even if they are not named in the will. This is especially important for those who have been married or separated for a long time and may have separated but not legally divorced. Prevention: Understand the rules under British Columbia family law. If you’re separated but not yet divorced, your spouse may still be entitled to certain rights. Similarly, the WESA allows children to claim a portion of the estate. If they are left out entirely or if they believe their inheritance is insufficient.

5. Failing to Address Debts and Taxes

Mistake: Some people overlook the payment of debts and taxes in their will, which can cause confusion or disputes. Prevention: Be sure to address how debts, including income taxes and any final expenses, should be paid from your estate. You can specify whether specific assets should be liquidated to cover these liabilities or leave it to the discretion of the executor.

6. Not Dealing with Digital Assets

Mistake: In today’s digital age, many people have assets stored online. This includes social media accounts, digital photos, and cryptocurrency. These things aren’t always addressed in a will. Prevention: Make a list of your digital assets and leave instructions on how to access and manage them. You may also want to appoint someone to handle these assets if needed.

7. Inadequate Clauses Regarding Guardianship of Minor Children

Mistake: If you have minor children and you fail to name a guardian in your will, the court will decide who will look after them. The decision may not align with your wishes. Prevention: If you have children under the age of 19, clearly specify in your will who should be the legal guardian(s) of your children. Be sure to discuss this with the potential guardian(s) ahead of time. Ensure the people you choose are willing to take on the responsibility.

8. Not Including a Residuary Clause

Mistake: If you don’t include a residuary clause, any assets that aren’t specifically named in your will could be distributed according to provincial laws (intestate succession), which may not align with your wishes. Prevention: Include a residuary clause that specifies how any remaining assets should be distributed if they aren’t already addressed in the body of the will. This helps prevent confusion and ensures everything is taken care of.

9. Overlooking the Impact of Joint Property

Mistake: Many people don’t account for joint assets (e.g., jointly held real estate or bank accounts) in their will. In British Columbia, joint property with a right of survivorship typically passes directly to the surviving joint owner. Prevention: Make sure to address joint assets in your will. Consider how they may impact the distribution of your estate. Keep in mind that some property (like a jointly owned home or bank account) will automatically pass to the surviving joint owner and may not be subject to your will.

10. Not Considering “Spouse” in Common-Law Relationships

Mistake: In British Columbia, common-law partners are treated similarly to married couples under the WESA. Unfortunately, people often mistakenly assume that the law won’t apply to them. Prevention: If you’re in a common-law relationship, ensure that your will addresses your partner’s role as a beneficiary. Common Law partners are entitled to share in the estate if not otherwise addressed.

11. Leaving the Will to be Found Later

Mistake: Leaving a will in an inaccessible location, such as a safety deposit box without telling your executor, or in a place that could easily be destroyed, could lead to delays or even invalidate your wishes. Prevention: Keep your will in a safe place. Tell your executor where they can access it. Secure places include with a lawyer or in a home safe.

12. DIY Wills

Mistake: While British Columbia allows individuals to create their own wills. In doing so and without legal guidance can lead to errors that render the will invalid or difficult to enforce. Prevention: Consider consulting with an estate planning lawyer to ensure that your will is clear, legally valid, and meets your needs. This is especially important for complex estates, blended families, or large assets.

Additional Tip: Consider a Representation Agreement

If you have concerns about medical or financial decisions being made in the event you are unable to make them for yourself, consider creating a Representation Agreement alongside your will. This can help prevent confusion about who has the authority to make critical decisions on your behalf in case of incapacity.

Conclusion:

In British Columbia, avoiding these 12 common mistakes when making a legal will can prevent major complications for your executor and loved ones after your death. Make sure you regularly review your will. Ensuring legal compliance, and seeking professional advice when necessary can ensure that your final wishes are carried out smoothly and effectively. It is also important to note that it is not expensive to create a will or amend a current will. However, it is expensive and time consuming to have a lawyer assist with probate and other estate complications. Contact Us to speak with one of the lawyers at Wishart Brain & Spine Law about your estate planning.