Making a valid will
Let’s review the formal requirements of making a valid will:
- The will must be in writing. It can be typed or handwritten. If typed, the will must be printed and signed in hard-copy form.
- You must sign the last page of the will. You can’t use an electronic signature. You must also date the will when you sign it.
- Your signature must be witnessed by two other adults who are present at the time you sign. The two witnesses must then sign the will in front of you. You and the witnesses should initial each page of the will in front of each other.
Thinking of updating your will? You can make changes to your existing will by signing a separate document, called a codicil. To be legal, the codicil has to meet the same requirements as a will. For example, it must be in writing, dated, and signed by you and two witnesses. For more, see our information on changing or cancelling a will.
Usually, the law requires that the will-maker and their witnesses must all be physically present together. To ensure that British Columbians can safely make wills during this time, the provincial government has ordered that a will or codicil may be signed and witnessed while the will-maker and the witnesses are in each other’s electronic presence. These are temporary measures. See Option 2 below to learn what’s required when a will or codicil is witnessed electronically.
Physical distancing presents new challenges
Creating or updating a will while obeying orders to limit contact with others or self-isolate presents some challenges. For one thing, how do you maintain distance while being physically present with two witnesses?
The most important thing is to follow guidance given by public health authorities and your own health care providers. It’s still possible for many people to make a will in the present circumstances. It may just take some creativity!
Option 1. If you won't be using a lawyer or notary
While the provincial government is currently allowing for wills to be witnessed remotely, there are certain requirements that must be met. One of these is that at least one of your witnesses must be a lawyer or notary public. Most should be able to work remotely to assist you at this time.
If you feel you can’t afford or otherwise access a lawyer or notary at this time, there are still ways your will can be signed and witnessed safely. To use this option, you must have two people who are willing and able to witness your will in person.
Choosing your witnesses
It’s good practice for the witnesses not to be executors or beneficiaries under the will — or their spouses. This might be difficult at a time when you’re isolating with family.
Think of anyone else who can safely meet with you, who doesn’t have an interest in the will. Roommates, trusted neighbours, or co-workers (if you’re not working from home) might be good options.
If you feel there are no other options, a beneficiary can act as your witness. The risk is that your beneficiary will not receive their gift unless a court allows it. Your executor would have to apply to the court to show you did intend to make the gift. This takes time and money! And if the court isn’t satisfied, the witness can’t receive the gift. Either way, be aware that the remainder of the will isn’t affected. You should talk to a lawyer before having any beneficiary act as your witness.
Once current restrictions are relaxed, re-sign a fresh copy of the will. This time, use two witnesses who aren’t beneficiaries, executors, or their spouses!
Wills can be witnessed safely
Here are some practical tips for signing and witnessing your will, at a distance:
- If you don't have a printer at home, ask around. Someone you know may be willing to print the will and leave it on your front step. (Make sure you're comfortable with them possibly reading it!)
- Ideally, the signing should be done outside or with a window separating you and the witnesses.
- Each person should stay at least two metres away from every other person.
- Everyone should bring their own pens.
- Bring a mask and clean gloves, if you feel this is necessary.
- Be hyper aware of personal hygiene. Don’t lick your fingers to turn the pages of the will! Don’t touch your face, and wash your hands thoroughly with soap once you’ve finished.
The witnesses don’t need to read the will. All they need to do is watch you sign your name to it, and sign it themselves in front of you.
Consider the following creative solutions:
- Sign and witness at a two-metre distance. Set up a table outside (say, in your yard). Each person stands at least two metres away from the table, and each other. The witnesses watch as you step up to sign. The witnesses each take their turn to step up to sign.
- Sign and witness through a window. You can sign your will in the safety of your own car, or home, with your witnesses watching on through a window. Open the window and pass your will (using gloves) to each witness, for each of them to sign. Again, each person brings their own pen.
Option 2. Your will can be signed or witnessed remotely
You can use this option if you simply wish to exercise caution and limit your exposure to others. In certain cases, it might not be possible to meet anyone in person, even at a distance. For example, if you have symptoms of COVID-19, or have been exposed to coronavirus. Or if you're caring for (or living with) a loved one who’s at extremely high risk, such as someone undergoing chemotherapy. In these types of situations, it may be too high a risk to have witnesses physically present (even at a distance), or touch the same document as you.
It’s best to speak to a lawyer or notary public
In these situations, you should connect with a lawyer or notary public by phone or by email to talk about what’s appropriate in your particular circumstances. They can explain the ministerial order that’s currently in place that temporarily allows for wills and codicils to be signed and witnessed remotely. That is, during this time, a will can be valid if the will-maker and the witnesses are in each other’s electronic presence. This could involve having you and your witnesses connect on a video call, each with a copy of the will, and watch each other signing the document.
Certain requirements must be met
In order for your will to be valid when signed and witnessed remotely, the ministerial order requires that at least one of the witnesses be a lawyer or a notary public. The will must also include a statement that it was signed and witnessed in accordance with Ministerial Order No. M161.
Under the order:
- you can sign in the physical presence of one of your witnesses, while your other witness watches on remotely,
- your witnesses can be physically present together, and both can watch on remotely as you sign, or
- you, your first witness, and your second witness can each be physically separate, but simultaneously connect electronically for the signing and witnessing of the will.
The order allows the will to be made by signing complete and identical copies of the will in counterpart. This means that each person may sign a separate (identical) copy of the will. Your lawyer or notary should arrange for these original copies to be compiled, and kept together.
The measures are temporary
Be clear that the ability to have a will witnessed remotely is temporary. It’s meant to provide a safe option for people to prepare or update their will during the coronavirus pandemic. The temporary measures apply as of May 19, 2020 and remain in effect until the provincial state of emergency is cancelled or expires.