British Columbia Court Confirms a Will Must Exist Before Death to Be Valid
A British Columbia court recently dismissed an application to validate a will that, technically speaking, did not exist when the testator died.
The case involved a man named Richard who died in 2019 after a sudden illness. Before his death, Richard had texted his daughter saying he was updating his will through a lawyer. He never finished. What did exist was a draft will, but that draft only came into being two days after Richard's death, when the lawyer prepared it based on instructions Richard had given during a single meeting three weeks before he died.
The daughter applied to have this posthumously-drafted document validated under Section 58 of the Wills, Estates and Succession Act. Section 58 is B.C.'s curative provision, it allows courts to recognize documents that do not meet the formal execution requirements (witnesses, signatures, proper attestation) if they can be satisfied the document represents the testator's true intentions. Courts have validated handwritten notes, unsigned drafts, even text messages under this section. But every case that succeeded shared one feature: the document existed during the testator's lifetime, even if it wasn't formally executed.
This case tested a different question. Can a document that only came into existence after death still count as a will?
The court said no. Justice DeWitt-Van Oosten ruled that for a document to qualify as a testamentary record under Section 58, it must have been created while the testator was alive. Instructions given to a lawyer are not themselves a will. Instructions are what Richard provided. The lawyer's act of preparing the document after Richard's death transformed those instructions into text, but at that point Richard could not review it, approve it, or change his mind about any of its terms.
The ruling turns on the principle that a will expresses intention at a fixed point in time. Richard's lawyer acted in good faith, drafting exactly what Richard had instructed. But the document produced from those instructions reflects what the lawyer understood Richard to mean, filtered through legal drafting conventions, not what Richard would have approved after seeing the final language. Richard never saw the document. He had no opportunity to read clause three and decide it was wrong, or see how the residue clause worked and ask for changes. A will is meant to be the testator's voice. What existed here was a lawyer's interpretation of that voice, written after the speaker had gone.
This is not a narrow technical ruling. The line the court drew protects against real risks. If instructions alone could form the basis of a valid will, then any conversation with a lawyer, any unsigned email, any informal discussion about future plans could be reshaped into a binding document after death. The safeguard is requiring the testator to see the finished product, or at the very least, to produce something in their own hand or voice while alive.
Section 58 remains a flexible tool. B.C. courts have used it to save wills that failed on formalities but succeeded on substance. The requirement is not perfection. It is existence. The document, draft, note, recording, must have existed while the person who made it was still alive to change it.
Richard's estate was distributed under B.C.'s intestacy rules. His daughter's application failed not because the instructions were unclear, but because they were never converted into a document Richard could have touched, read, or rejected.
