Whereas some issues with a Will can be rectified, others will result in the Will being held as invalid.
Issues concerning undue influence or lack of capacity can have the effect of invalidating a Will. A Will may also be invalid if it does not comply with s.37 of the British Columbia Wills Estates and Succession Act (“WESA”) which states that the Will must be:
(a) In writing,
(b) Signed at its end by the Will-maker or the signature at the end must be acknowledged by the Will-maker as his or hers, in the presence of 2 or more witnesses present at the same time, and
(c) Signed by 2 or more of the witnesses in the presence of the Will-maker.
Further, a Will that contains unclear provisions may be found to be invalid or the particular gifts that are the subject of the unclear provisions may fail unless they can be cured under certain provisions in WESA. Other issues with a Will, such as formality requirements, may be able to be fixed through provisions of WESA.
Under section 58 of WESA, if a Will does not satisfy the formal requirement, the court has discretion to cure the formal deficiencies. This generally involves ascertaining the Will-maker’s testamentary intentions.