This archived statute consolidation is current to November 25, 1993 and includes changes enacted and in force by that date.

Wills Act

[RSBC 1979] CHAPTER 434

Contents
Section
  1.  Interpretation
Part 1
  2.  Property disposable by will
  3.  Writing required
  4.  Signatures required on formal will execution
  5.  Military forces and mariners
  6.  Place of signature
  7.  Infants
  8.  Will exercising power of appointment
  9.  Publication
  10.  Incompetency of witness
  11.  Gift to attesting witness
  12.  Creditor as witness
  13.  Executor as witness
  14.  Revocation in general
  15.  Revocation by marriage
  16.  Revocation of gift on dissolution
  17.  Making alteration
  18.  Revival
  19.  Subsequent conveyance
  20.  Effective time of will
  21.  Lapsed and void devises and bequests
  22.  Inclusion of leaseholds in general devise
  23.  Exercise of general power of appointment by general gift
  24.  Devise without words of limitation
  25.  Gifts to heirs
  26.  Meaning of "die without issue"
  27.  Devise to trustees otherwise than for term
  28.  Unlimited devise to trustees
  29.  Gifts to issue predeceasing testator
  30.  Repealed
  31.  Primary liability of mortgaged land
  32.  Executor as trustee of residue
Part 2
  33.  Filing of notice of will with Director of Vital Statistics
  34.  Filing of notice of revocation
  35.  Change of place where will is situated
  36.  Index
  37.  Search of index book
  38.  Validity of will or revocation not affected
  39.  Repealed
  40.  Regulations
Part 3
  41.  Interpretation
  42.  Wills of interest in movables
  43.  Change of domicile
  44.  Construction of will
  45.  Movables used in relation to land
Part 4
  46.  Application
  47.  Proclamation

Interpretation

1.  In this Act "will" includes a testament, a codicil, an appointment by will or by writing in the nature of a will in exercise of a power and any other testamentary disposition.

Historical Note(s): RS1960-408-2.

Part 1

Property disposable by will

2.  A person may by will devise, bequeath or dispose of all property, whether acquired before or after making his will, to which at the time of his death he is entitled either at law or in equity, including

(a) estates pur autre vie, whether there is or is not a special occupant, and whether they are corporeal or incorporeal hereditaments;

(b) contingent, executory or other future interest in property, whether the testator is or is not ascertained as the person or one of the persons in whom those interests may respectively become vested and whether he is entitled to them under the instrument by which they were respectively created or under a disposition of them by deed or will;

(c) rights of entry.

Historical Note(s): RS1960-408-3.

Writing required

3.  A will is valid only when it is in writing.

Historical Note(s): RS1960-408-4.

Signatures required on formal will execution

4.  Subject to section 5, a will is not valid unless

(a) at its end it is signed by the testator or signed in his name by some other person in his presence and by his direction;

(b) the testator makes or acknowledges the signature in the presence of 2 or more attesting witnesses present at the same time; and

(c) 2 or more of the attesting witnesses subscribe the will in the presence of the testator.

Historical Note(s): RS1960-408-5.

Military forces and mariners

5.  (1) A member of the Canadian Forces while placed on active service under the National Defence Act, or member of the naval, land or air force of any member of the British Commonwealth of Nations or any ally of Canada while on active service, or a mariner or seaman at sea or in the course of a voyage may, regardless of his age, dispose of his real and personal estate by will in writing, signed by the testator at its end or by some other person in the presence of and by the direction of the testator.

(2) Where the will is signed by the testator, there shall be no necessity for the presence, attestation or subscription of any witness.

(3) Where the will is signed by another person, the signature of that other person shall be attested by the signature of at least one person, who shall attest in the presence of the testator and of that other person.

Historical Note(s): RS1960-408-6.

Place of signature

6.  (1) A will is deemed to be signed at its end if the signature of the testator, made either by him or the person signing for him, is placed at or after or following or under or beside or opposite to the end of the will so that it is apparent on the face of the will that the testator intended to give effect by the signature to the writing signed as his will.

(2) A will is not rendered invalid by the circumstance that

(a) the signature does not follow immediately the end of the will;

(b) a blank space intervenes between the concluding words of the will and the signature;

(c) the signature is placed among the words of a testimonium clause or of a clause of attestation or follows or is after or under a clause of attestation either with or without a blank space intervening, or follows or is after or under or beside the name of a subscribing witness;

(d) the signature is on a side or page or other portion of the paper or papers containing the will on which no disposing part of the will is written above the signature; or

(e) there appears to be sufficient space to contain the signature on or at the bottom of the side or page or other portion of the same paper on which the will is written and preceding that on which the signature appears.

(3) The generality of subsection (1) is not restricted by the enumeration of circumstances set out in subsection (2), but a signature in conformity with section 4 or 5 or this section does not give effect to a disposition or direction that is underneath the signature or that follows the signature or to a disposition or direction inserted after the signature was made.

Historical Note(s): RS1960-408-7.

Infants

7.  (1) A will made by a person who is under the age of 19 years is not valid unless at the time of making the will the person

(a) is or has been married; or

(b) is a person described in section 5.

(2) For the purposes of section 5 and of this section, a certificate purporting to be signed by or on behalf of an officer having custody of the records of the force in which a person was serving at the time the will was made setting out that the person was at that time a member of a naval, military or air force of a named country is sufficient proof of that fact.

(3) A person who has made a will to which subsection (1) applies may, while under the age of 19 years, revoke the will.

Historical Note(s): RS1960-408-8.

Will exercising power of appointment

8.  A will made in accordance with this Act is as to form a valid execution of a power of appointment by will, notwithstanding that it has been expressly required that a will in exercise of the power be made in some form other than that in which it is made.

Historical Note(s): RS1960-408-9.

Publication

9.  A will made in accordance with this Act is valid without other publication.

Historical Note(s): RS1960-408-10.

Incompetency of witness

10.  Where a person who attested a will was at the time of its execution or afterward has become incompetent as a witness to prove its execution, the will is not on that account invalid.

Historical Note(s): RS1960-408-11.

Gift to attesting witness

11.  (1) Where a will is attested by a person to whom or to whose then wife or husband a beneficial devise, bequest or other disposition or appointment of or affecting property, except charges and directions for payment of debt, is thereby given or made, the devise, bequest or other disposition or appointment is void so far only as it concerns the person so attesting, or the wife or the husband or a person claiming under any of them; but the person so attesting is a competent witness to prove the execution of the will or its validity or invalidity.

(2) A devise, bequest or other disposition or appointment is not void under this section where the will is attested in accordance with section 4 or 5 by at least the number of persons required by those sections and who are not persons within subsection (1).

Historical Note(s): RS1960-408-12.

Creditor as witness

12.  Where property is charged by a will with a debt and a creditor or the wife or husband of a creditor whose debt is so charged attests a will, the person so attesting, notwithstanding that charge, is a competent witness to prove the execution of the will or its validity or invalidity.

Historical Note(s): RS1960-408-13.

Executor as witness

13.  A person is not incompetent as a witness to prove the execution of a will, or its validity or invalidity, solely because he is an executor.

Historical Note(s): RS1960-408-14.

Revocation in general

14.  (1) A will or part of a will is revoked only by

(a) marriage of the testator, subject to section 15;

(b) another will made in accordance with this Act;

(c) a writing declaring an intention to revoke and made in accordance with the provisions of this Act governing the making of a will; or

(d) the burning, tearing or destruction of it in some other manner by the testator, or by some person in his presence and by his direction, with the intention of revoking it.

(2) A will is not revoked by presumption of an intention to revoke it on the ground of a change in circumstances.

Historical Note(s): RS1960-408-15,17.

Revocation by marriage

15.  A will is revoked by the marriage of the testator, except where

(a) there is a declaration in the will that it is made in contemplation of the marriage; or

(b) the will is made in exercise of a power of appointment of property which would not in default of the appointment pass to the heir, executor or administrator of the testator or to the persons entitled to the estate of the testator if he died intestate.

Historical Note(s): RS1960-408-16.

Revocation of gift on dissolution

16.  (1) Where in a will a testator

(a) gives an interest in property to his spouse;

(b) appoints his spouse executor or trustee; or

(c) confers a general or special power of appointment on his spouse;

and after the making of the will and before his death

(d) a judicial separation has been ordered in respect of his marriage;

(e) his marriage is terminated by a decree absolute of divorce, or a judgment granting a divorce under the Divorce Act, 1985 (Canada) for which a certificate was or could have been issued under that Act; or

(f) his marriage is found to be void or declared a nullity by a court

then, unless a contrary intention appears in the will, the gift, appointment or power is revoked and the will takes effect as if the spouse had predeceased the testator.

(2) In subsection (1) "spouse" includes a person considered by the testator to be his spouse.

Historical Note(s): 1979-2-63; RS1979-434-47, proclaimed effective August 1, 1981; 1987-42-108.

Making alteration

17.  (1) Subject to subsection (2), unless an alteration that is made in a will is made in accordance with the provisions of this Act governing the making of a will, the alteration has no effect, except to invalidate words or meanings that it renders no longer apparent.

(2) An alteration that is made in a will is validly made when the signature of the testator and the subscription of the witness or witnesses to the signature of the testator to the alteration are made

(a) in the margin or in some other part of the will opposite or near to the alteration; or

(b) at the end of or opposite to a memorandum referring to the alteration and written in some part of the will.

Historical Note(s): RS1960-408-18.

Revival

18.  (1) A will or part of a will that has been in any manner revoked is revived only

(a) by a will made in accordance with this Act; or

(b) by a codicil made in accordance with this Act

that shows an intention to give effect to the will or part that was revoked.

(2) Except when a contrary intention is shown, when a will that has been partly revoked and afterward wholly revoked is revived, the revival does not extend to the part that was revoked before the revocation of the whole.

Historical Note(s): RS1960-408-19.

Subsequent conveyance

19.  A conveyance of or other act relating to property comprised in a devise or bequest or other disposition, made or done after the making of a will, does not prevent operation of the will with respect to any estate or interest in the property that the testator had power to dispose of by will at the time of his death.

Historical Note(s): RS1960-408-20.

Effective time of will

20.  (1) When a will has been revived or re-executed by a codicil, the will is deemed to have been made at the time at which it was revived or re-executed.

(2) Except when a contrary intention appears by the will, a will speaks and takes effect as if it had been made immediately before the death of the testator with respect to the property.

Historical Note(s): RS1960-408-21.

Lapsed and void devises and bequests

21.  Except when a contrary intention appears by the will, property or an interest in it that is comprised or intended to be comprised in a devise or bequest that fails or becomes void by reason of the death of the devisee or donee in the lifetime of the testator, or by reason of the devise or bequest being contrary to law or otherwise incapable of taking effect, is included in the residuary devise or bequest, if any, contained in the will.

Historical Note(s): RS1960-408-22.

Inclusion of leaseholds in general devise

22.  Except when a contrary intention appears by the will, where a testator devises

(a) his land;

(b) his land in a place mentioned in the will, or in the occupation of a person mentioned in the will;

(c) land described in a general manner; or

(d) land described in a manner that would include a leasehold estate if the testator had no freehold estate which could be described in the manner used;

the devise includes the leasehold estates of the testator or any of them to which the description extends, as well as freehold estates.

Historical Note(s): RS1960-408-23.

Exercise of general power of appointment by general gift

23.  (1) Except when a contrary intention appears by the will, a general devise of

(a) the real property of the testator;

(b) the real property of the testator in a place mentioned in the will or in the occupation of a person mentioned in the will; or

(c) real property described in a general manner

includes any real property or any real property to which the description extends, that he has power to appoint in any manner he thinks proper and operates as an execution of the power.

(2) Except when a contrary intention appears by the will, a bequest of

(a) the personal property of the testator; or

(b) personal property described in a general manner

includes any personal property or any personal property to which the description extends, that he has power to appoint in any manner he thinks proper and operates as an execution of the power.

Historical Note(s): RS1960-408-24.

Devise without words of limitation

24.  Except when a contrary intention appears by the will, where real property is devised to a person without words of limitation, the devise passes the fee simple or the whole of any other estate that the testator had power to dispose of by will in the real property.

Historical Note(s): RS1960-408-25.

Gifts to heirs

25.  Except when a contrary intention appears by the will, where property is devised or bequeathed to the heir or next of kin of the testator or of another person, the devise or bequest takes effect as if it had been made to the persons among whom and in the shares in which the estate of the testator or other person would have been divisible if he had died intestate.

Historical Note(s): RS1960-408-26.

Meaning of "die without issue"

26.  (1) Subject to subsection (2), in a devise or bequest of property

(a) the words

(i)  "die without issue",

(ii)  "die without leaving issue"; or

(iii)  "have no issue"; or

(b) other words importing either a want or failure of issue of a person in his lifetime or at the time of his death or an indefinite failure of his issue

shall be deemed to refer to a want or failure of issue in the lifetime or at the time of death of that person and not to an indefinite failure of his issue unless a contrary intention appears by the will.

(2) This section does not extend to cases where the words defined in subsection (1) import

(a) if no issue described in a preceding gift be born; or

(b) if there be no issue who live to attain the age or otherwise answer the description required for obtaining a vested estate by a preceding gift to that issue.

Historical Note(s): RS1960-408-27.

Devise to trustees otherwise than for term

27.  Except when there is devised to a trustee expressly or by implication an estate for a definite term of years absolute or determinable or an estate of freehold, a devise of real property to a trustee or executor passes the fee simple or the whole of any other estate or interest that the testator had power to dispose of by will in the real property.

Historical Note(s): RS1960-408-28.

Unlimited devise to trustees

28.  Where real property is devised to a trustee without express limitation of the estate to be taken by him and the beneficial interest in the real property or in the surplus rents and profits

(a) is not given to a person for life; or

(b) is given to a person for life but the purpose of the trust may continue beyond his life;

the devise vests in the trustee the fee simple or the whole of any other legal estate that the testator had power to dispose of by will in the real property and not an estate determinable when the purposes of the trust are satisfied.

Historical Note(s): RS1960-408-29.

Gifts to issue predeceasing testator

29.  (1) Except when a contrary intention appears by the will, where a person dies in the lifetime of a testator either before or after the testator makes the will and that person

(a) is a child or other issue or a brother or sister of the testator to whom, either as an individual or as a member of a class, is devised or bequeathed an estate or interest in property not determinable at or before his death; and

(b) leaves issue any of whom is living at the time of the death of the testator;

the devise or bequest does not lapse, but takes effect as if it had been made directly to the persons among whom and in the shares in which the estate of that person would have been divisible if he had died intestate without leaving a spouse and without debts immediately after the death of the testator.

(2) Except when a contrary intention appears by the will, where a person dies in the lifetime of a testator either before or after the testator makes the will and that person

(a) is a child or other issue or a brother or sister of the testator to whom, either as an individual or as a member of a class, is devised or bequeathed an estate or interest in property not determinable at or before his death; and

(b) leaves a spouse but does not leave issue any of whom is living at the time of the death of the testator;

the devise or bequest does not lapse, but takes effect as if it had been made directly to the persons among whom and in the shares in which the estate of that person would have been divisible if he had died intestate and without debts immediately after the death of the testator.

Historical Note(s): RS1960-408-30; 1967-49-16; 1975-73-27.

Repealed

30.  [Repealed 1985-68-118, effective April 17, 1985 (B.C. Reg. 392/85).]

Primary liability of mortgaged land

31.  (1) Where a person dies possessed of, or entitled to, or under a general power of appointment by his will disposes of, an interest in freehold or leasehold property which, at the time of his death, is subject to a mortgage, and the deceased has not, by will, deed or other document, signified a contrary or other intention, the interest is, as between the different persons claiming through the deceased, primarily liable for the payment or satisfaction of the mortgage debt; and every part of the interest, according to its value, bears a proportionate part of the mortgage debt on the whole interest.

(2) A testator does not signify a contrary or other intention within subsection (1) by

(a) a general direction for the payment of debts or of all the debts of the testator out of his personal estate or his residuary real or personal estate, or his residuary real estate; or

(b) a charge of debts on that estate;

unless he further signifies that intention by words expressly or by necessary implication referring to all or some part of the mortgage debt.

(3) Nothing in this section affects a right of a person entitled to the mortgage debt to obtain payment or satisfaction either out of the other assets of the deceased or otherwise.

(4) In this section "mortgage" includes an equitable mortgage, and any charge, whether equitable, statutory or of other nature, including a lien or claim on freehold or leasehold property for unpaid purchase money, and "mortgage debt" has a meaning similarly extended.

Historical Note(s): RS1960-408-32.

Executor as trustee of residue

32.  (1) Except where a contrary intention appears by the will, where a person dies after this Act takes effect, having by will appointed a person executor, the executor is a trustee of any residue not expressly disposed of for the persons among whom and in the shares in which the estate of the testator would have been divisible if he had died intestate.

(2) Nothing in this section affects or prejudices a right to which the executor, if this Part had not been passed, would have been entitled in cases where there is not a person who would be so entitled.

Historical Note(s): RS1960-408-33.

Part 2

Filing of notice of will with Director of Vital Statistics

33.  Where a person has executed a will, a notice may be filed with the Director of Vital Statistics in a form satisfactory to the Director of Vital Statistics.

Historical Note(s): RS1960-408-34; 1992-62-12.

Filing of notice of revocation

34.  Where a will has been revoked, whether or not a notice was filed under section 33, a notice of revocation in a form satisfactory to the Director of Vital Statistics may be filed with the Director of Vital Statistics.

Historical Note(s): RS1960-408-35; 1984-19-19, effective June 15, 1984 (B.C. Reg. 172/84); 1992-62-12.

Change of place where will is situated

35.  Where notice has been filed under section 33 and the will is no longer situated at the place mentioned in the notice, notice of the change in a form satisfactory to the Director of Vital Statistics may be filed with the Director of Vital Statistics.

Historical Note(s): RS1960-408-36; 1992-62-12.

Index

36.  The Director of Vital Statistics must maintain, in a system that the Director of Vital Statistics believes facilitates access to information by those who require it, a record of every notice filed with the Director of Vital Statistics under this Act.

Historical Note(s): 1992-62-13.

Search of index book

37.  (1) A solicitor of the Supreme Court of British Columbia or a member of the Society of Notaries Public of British Columbia may, on written application in the form prescribed by regulation, ascertain from the Director of Vital Statistics whether or not a notice has been filed under this Act.

(2) Any person other than a solicitor of the Supreme Court of British Columbia or a member of the Society of Notaries Public of British Columbia may, on written application accompanied either by a certificate of the death of the person named in the application or by a statutory declaration proving to the satisfaction of the Director of Vital Statistics that the person named in the application has died, ascertain from the director if the person has filed a notice under this Act.

(3) The Director of Vital Statistics shall issue to an applicant under subsection (1) or (2) a certificate in duplicate showing the contents of all notices filed and relevant to the application and shall permit the applicant, or the agent of the applicant, to inspect the notices.

(3.1) The Director of Vital Statistics may provide a solicitor or member of the Society of Notaries Public of British Columbia who is an applicant under subsection (1) with

(a) a copy of a notice filed under this Act, or

(b) access by computer or otherwise to information contained in a notice filed under this Act.

(4) Except as provided in this section, the Director of Vital Statistics shall not furnish to any person information regarding notices filed under this Act or information showing whether or not a notice has been filed.

Historical Note(s): RS1960-408-38; 1984-19-20, effective June 15, 1984 (B.C. Reg. 172/84); 1992-62-14.

Validity of will or revocation not affected

38.  The failure to file or the filing of a notice under this Act shall not affect the validity of a will or of the revocation of a will.

Historical Note(s): RS1960-408-39.

Repealed

39.  [Repealed 1984-19-21, effective June 15, 1984 (B.C. Reg. 172/84).]

Regulations

40.  The Lieutenant Governor in Council may make regulations regarding

(a) the keeping, custody, disposal, destruction and indexing of notices filed under this Part that have been superseded or that refer to wills that have been probated;

(b) the use to be made of and the procedure to be followed with respect to the original and duplicate certificate issued under section 37;

(c) the carrying into effect of this Part according to its true intent, or the supplying of deficiencies in it;

(d) prescribing forms for use under this Act; and

(e) the prescribing of fees to be paid to file a notice under this Part or to search for or inspect a notice filed under this Part.

Historical Note(s): RS1960-408-41; 1984-19-22, effective June 15, 1984 (B.C. Reg. 172/84); 1988-38-10.

Part 3

Interpretation

41.  (1) In this Part

(a) an interest in land includes a leasehold estate as well as a freehold estate in land, and any other estate or interest in land whether the estate or interest is real property or is personal property;

(b) an interest in movables includes an interest in a tangible or intangible thing other than land, and includes personal property other than an estate or interest in land.

(2) Subject to other provisions of this Part, the manner and formalities of making a will, and its intrinsic validity and effect, so far as it relates to an interest in land, are governed by the law of the place where the land is situated.

(3) Subject to other provisions of this Part, the manner and formalities of making a will, and its intrinsic validity and effect, so far as it relates to an interest in movables, are governed by the law of the place where the testator was domiciled at the time of his death.

Historical Note(s): RS1960-408-42.

Wills of interest in movables

42.  In so far as the manner and formalities of making a will are concerned, a will, so far as it relates to an interest in movables, made without the Province is valid and admissible to probate if it is made in accordance with the law in force at the time of its making in the place where

(a) the will was made;

(b) the testator was domiciled when the will was made; or

(c) the testator had his domicile of origin.

Historical Note(s): RS1960-408-43.

Change of domicile

43.  A change of domicile of the testator occurring after a will is made does not render it invalid as regards the manner and formalities of its making or alter its construction.

Historical Note(s): RS1960-408-44.

Construction of will

44.  Nothing in this Part precludes resort to the law of the place where the testator was domiciled at the time of making a will in aid of its construction as regards an interest in land or an interest in movables.

Historical Note(s): RS1960-408-45.

Movables used in relation to land

45.  Where the value of a thing that is movable consists mainly or entirely in its use in connection with a particular parcel of land by the owner or occupier of the land, succession to an interest in the thing, under a will or on an intestacy, is governed by the law of the place where the land is situated.

Historical Note(s): RS1960-408-46.

Part 4

Application

46.  (1) Except as provided in subsections (2) and (3), this Act applies only to wills made after March 31, 1960.

(2) In the case of a person dying after March 17, 1960, sections 25 and 31 apply to the will and estate of the testator whether the will was made before, on or after March 31, 1960.

(3) Section 16 applies to a will made before, on or after March 31, 1960.

Historical Note(s): RS1960-408-47; 1963-42-23; 1979-2-64; 1982-46-48.

Proclamation

47.  [Spent. RS1979-434-47, proclaimed effective August 1, 1981.]