12 September 2017
By Allison Curley
This series examines and compares recommendations made in several BCLI reports and those made by the Law Commission of England and Wales. To read the other posts in the series click here.
In order for a will to be valid, a will must meet certain formal requirements. These requirements, often referred to as “testamentary formalities,” are relatively standard throughout the common-law world and also relatively well-known: a will must be in writing, signed or by the testator (will-maker) or the signature acknowledged in the presence of two witnesses who also sign the will in the testator’s presence. BCLI’s 2006 report Wills, Estates and Succession: A Modern Legal Framework (“2006 Succession Law report”) contained recommendations concerning testamentary formalities. In its recent consultation paper, “Making A Will,” the Law Commission of England and Wales also makes provisional recommendations with respect to the reform of testamentary formalities. This final instalment of the wills series compares the law reform approaches of BCLI and the Law Commission to the law of wills.
Will Formalities and their Functions
In 1975, John H. Langbein identified and analyzed four purposes and functions of testamentary formalities in the article “Substantial Compliance with the Wills Act” published in the Harvard Law Review: the evidentiary function, the channeling function, the cautionary function, and the protective function. Langbein’s article was drawn upon by both the Law Commission in its 2017 consultation paper and by BCLI in our 2006 Succession Law report.
Formalities serve an evidentiary function by indicating that the will is in fact genuine and the testator had the intention to create it.. With respect to this function, Langbein says, “[t]he primary purpose of the Wills Act has always been to provide the court with reliable evidence of testamentary intent and of the terms of the will.” The Law Commission adds that, “[t]his evidentiary function is particularly important as the will may have been executed decades before the testator’s death and its validity challenged only after his or her death.”
Langbein’s channeling function refers to how formalities serve to standardize testation. Langbein states, “[c]ompliance with the Wills Act formalities for executing witnessed wills results in considerable uniformity in the organization, language, and content of most wills.”
Formalities also serve a cautionary function in that they cause the testator to reflect on the document and its significance.
Finally, formalities can protect individuals from fraud and undue influence. For this reason, Langbein terms the fourth function of formalities the “protective function.” The Law Commission elaborates by saying: “a signed document is more difficult to forge than an unsigned document and the presence of disinterested witnesses could protect the testator from pressure exerted by a beneficiary.”
Testamentary Formalities in British Columbia
In British Columbia, the rules governing will-making are now contained in the Wills, Estates and Succession Act (“WESA”). The main provision is section 37(1) of WESA, which stipulates that,
37 (1) To be valid, a 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.
The WESA provision was essentially carried forward from the former Wills Act of British Columbia, but with the addition of an important reform regarding the consequences of non-compliance, as explained below in this post.
Testamentary Formalities in England and Wales
In their review of testamentary formalities, the Law Commission suggests how there must be a balance between two equally important objectives. The Law Commission states that on the one hand, formalities can be a barrier to people writing wills because their wishes might not be upheld if certain formality requirements are not met, effectively deterring people from making wills to give effect to their testamentary wishes. The Law Commission further notes that, “[o]n the other hand, if formality requirements are not effective, then there is a risk of wills being accepted as valid that do not in fact represent the testator’s wishes.” The Law Commission paper gives three examples: the will could be forged, the testator did not understand or appreciate that the document would be given effect as a will, and the testator could be subject to undue influence.
The Law Commission also concludes that it is important that formal requirements remain simple and accessible, so that people are encouraged to make wills instead of deterred from doing so. This said, the Law Commission further notes that some complexity is necessary “to ensure that formalities perform their functions.” The Law Commission invites consultees to contribute their perspective on whether current formality rules deter people from making wills, and if so, what the main barriers are.
As stated earlier, in England and Wales, the law of wills is governed by the Wills Act, 1837. Section 9 of the Wills Act deals with formal requirements:
No will shall be valid unless—
- it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and
- it appears that the testator intended by his signature to give effect to the will; and
- the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
- each witness either—
- attests and signs the will; or
- acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness),
but no form of attestation shall be necessary.
The Law Commission considered a number of proposals for reform of testamentary formalities in English law. One pertains to who can sign a will on behalf of the testator. The Law Commission notes there is presently no restriction on who can sign a will on the testator’s behalf. Hypothetically, the person signing for the testator could be a beneficiary of the will, or even the sole beneficiary. The Law Commission identifies this as a cause for concern, and states that, “[i]t seems incongruous that, while section 15 of the 1837 Act ensures that a witness to a will cannot benefit from the will, no such limitation is imposed on a person who signs a will on behalf of a testator.”
The Law Commission provisionally proposes that a person who signs the will on behalf of the testator per section 9(b) of the Wills Act, 1837 should be treated the same as a witness, and that the consequences of that person signing should be the same. The Law Commission’s provisional reform proposal is that “a person who signs a will on behalf of the testator should not be able to be a beneficiary under the will.”
At present, under section 9(d)(ii) of the Wills Act 1837, witnesses do not need to be in each other’s presence when they sign and attest the will. The Law Commission provisionally proposes no change regarding this.
A Dispensing Power in British Columbia’s Wills Legislation
Our 2006 Succession Law report did not recommend changes to the testamentary formalities themselves, but did recommend that British Columbia enact a “curative provision” in the wills legislation that would allow a court to validate a will despite imperfect compliance with formal requirements..
The 2006 Succession Law report referred to the case of Ellis v Turner (1997), 43 BCLR (3d) 283 (CA) to illustrate that the courts then lacked any jurisdiction to give any relief from a failure to meet all formal requirements for a valid will. The will-maker’s name was affixed at the top of the document, but not at the bottom. Further, the will-maker did not sign in the presence of two witnesses, and she did not acknowledge the signature at the top as her own. The relevant provisions related to formalities in the wills legislation at the time were examined by the Court, and it was determined that the will was invalid. In the British Columbia Court of Appeal, Madam Justice Ryan concluded that, “[t]o declare the will in this case to be valid would be to by-pass the clear provisions of the Wills Act and to create a discretion in this Court which is not found in the Act. This is something which we cannot do.” (para 9)
The recommendation for a curative provision to provide a remedy in cases where a formal defect is present in a will, but there is no doubt as to the authenticity of the document as the last will of the deceased, was implemented in section 58 of WESA.
Section 58 of WESA reads as follows:
Court order curing deficiencies
58 (1) In this section, “record” includes data that
(a) is recorded or stored electronically,
(b) can be read by a person, and
(c) is capable of reproduction in a visible form.
(2) On application, the court may make an order under subsection (3) if the court determines that a record, document or writing or marking on a will or document represents
(a) the testamentary intentions of a deceased person,
(b) the intention of a deceased person to revoke, alter or revive a will or testamentary disposition of the deceased person, or
(c) the intention of a deceased person to revoke, alter or revive a testamentary disposition contained in a document other than a will.
(3) Even though the making, revocation, alteration or revival of a will does not comply with this Act, the court may, as the circumstances require, order that a record or document or writing or marking on a will or document be fully effective as though it had been made
(a) as the will or part of the will of the deceased person,
(b) as a revocation, alteration or revival of a will of the deceased person, or
(c) as the testamentary intention of the deceased person.
(4) If an alteration to a will makes a word or provision illegible and the court is satisfied that the alteration was not made in accordance with this Act, the court may reinstate the original word or provision if there is evidence to establish what the original word or provision was.
A Dispensing Power in England and Wales
The Law Commission’s recent consultation paper notes that a number of jurisdictions besides British Columbia have implemented dispensing powers enabling courts to recognize wills as valid despite defects in compliance with formal requirements. The Law Commission suggests that England and Wales are in a position to learn from the experience with these provisions elsewhere, stating:, “[g]iven the important role that a dispensing power can play in upholding the intentions of testators, and therefore testamentary freedom, and the fact that the main criticisms are now answerable, we think it right to propose provisionally that a dispensing power be introduced in England and Wales.”
The terms of the Law Commission’s provisional proposal with respect to a dispensing power are as follows:
We provisionally propose a power that would:
(a) be exercised by the court;
(b) apply to records demonstrating testamentary intention (including electronic documents, as well as sound and video recordings);
(c) operate according to the ordinary civil standard of proof;
(d) apply to records pre-dating the enactment of the power; and
(e) allow courts to determine conclusively the date and place at which a record was made.
Consultees are invited by The Law Commission to comment on whether they agree.
BCLI’s 2006 Succession Law report maintains that formalities “remain an important bulwark against fraud and forgery.” As discussed above, questions of the reform of testamentary formalities must be approached carefully, with consideration for a balance between encouraging individuals to make wills, while also ensuring the wills they make are authentic and represent their final wishes.
In the 2006 Succession Lawreport, BCLI recommended that a dispensing power to relieve against formal invalidity of a will in proper cases be included in British Columbia’s wills legislation. This recommendation was enacted, and can be found in section 58 of WESA. In 2017, the Law Commission of England and Wales has made a provisional proposal to include a similar dispensing power in wills legislation.
While there are some differences between how BCLI and the Law Commission have approached testamentary formalities, both law reform agencies have addressed the need to modernize wills legislation in their respective jurisdictions.