A former Albertan who I害羞草研究所檒l refer to as Beth, was recently advised by a Kelowna law firm that (quoting from the law firm害羞草研究所檚 e-mail that she forwarded to me): 害羞草研究所渁 Will prepared in Alberta is not valid in BC害羞草研究所�.
I reassured Beth that a will validly made in Alberta is perfectly valid in BC.
But I害羞草研究所檓 a sole practitioner in a small firm. A much larger firm had advised her, in writing, that it wasn害羞草研究所檛.
Beth was anxious. One law firm said one thing and little old me said the exact opposite.
I reached out to a partner at the firm asking that they please send Beth an e-mail retracting their incorrect advice.
The reply I got was interesting.
The reply: 害羞草研究所淚 confirm that a Will made in Alberta is not invalid in BC merely because it was made in Alberta, and if it is valid and properly executed in Alberta, with two witnesses, then it would be valid in BC害羞草研究所�.
I responded noting that it wasn害羞草研究所檛 me who needed convincing! I repeated my request that their retraction go directly to Beth.
I also noted in my response that Alberta law allows for holographic wills. A holograph will is one where the will-maker writes out their will by hand and then signs it. No witnesses are required.
The partner replied with the incorrect legal statement that a holograph will would be valid after court application to cure it.
Not so.
British Columbia害羞草研究所檚 Wills, Estates and Succession Act, section 80(a) very clearly states: 害羞草研究所淎 will is valid as to the formal requirements for making the will and is admissible to probate if it is made in accordance with the law of the place where the will is made害羞草研究所�.
There are provisions that allow for a court application to 害羞草研究所渃ure害羞草研究所� an invalid will. But there害羞草研究所檚 no need to do that in the case of a valid will, A holographic validly made in Alberta is a valid will in British Columbia.
A 害羞草研究所渃ure害羞草研究所� would be required for a holographic will made in British Columbia. The court will 害羞草研究所渃ure害羞草研究所� or validate such a will if the court is satisfied that it that the document represents the fixed and final intentions of the will-maker as to the disposal of their property on death.
I became very familiar with that aspect of the law because I害羞草研究所檝e had to make such an application to cure a handwritten will made by a British Columbian who had only one witness.
My request was followed, a retraction e-mail was indeed sent directly to Beth. And Beth has avoided the expensive exercise of unnecessarily redoing her perfectly valid will.
I believe in the 害羞草研究所渢ip of the iceberg害羞草研究所� theory.
Any former employee of Hergott Law knows what I害羞草研究所檓 talking about. If I stumbled on an error, I knew it was more likely the tip of an iceberg than a one-off. I always dug in to identify how it occurred so that systems could be implemented to avoid it happening again.
The advice given by the legal assistant of that firm was an error.
And then there害羞草研究所檚 the partner害羞草研究所檚 misunderstanding of the validity of a holographic will made in Alberta.
I wonder how big the iceberg is. How many former Albertans have been advised that their Alberta wills are not valid in BC?
How many dollars have been spent unnecessarily making new wills?
I do recommend that an immigrant to British Columbia consult with a lawyer about their estate planning documents, including their will.
Different provinces and countries can have significantly different legal systems and laws. While the will itself might be valid, it could be important to make a new will or take other estate planning steps to ensure your wishes will be best followed under British Columbia law.
An example is B.C. law that gives a spouse or child the right to challenge a will on the basis that it doesn害羞草研究所檛 adequately provide for them. If you move here from another jurisdiction that doesn害羞草研究所檛 have those rights thinking that you could disinherit your children with impunity, you will want to be advised about how best to avoid such a challenge.
And an Alberta made Power of Attorney is not automatically valid in B.C. It must be accompanied by a certificate provided by an Alberta qualified lawyer certifying that it was validly made in Alberta.
Then there害羞草研究所檚 what seems to be the rather unique British Columbian animal of a Representation Agreement that I害羞草研究所檝e written about in a previous column.
So yes, please consult with a B.C. lawyer about your estate planning documents if you have moved here from another jurisdiction. But if you害羞草研究所檙e told that your existing will is automatically invalidated by your move, find another lawyer!
To help me determine the size of the iceberg, would you mind please reaching out to me if you were advised that your Alberta will was invalid in B.C.?
Paul Hergott
Lawyer Paul Hergott began writing as a columnist in January 2007. Achieving Justice, based on Paul害羞草研究所檚 personal injury practice at the time, focused on injury claims and road safety. It was published weekly for 13 陆 years until July 2020, when his busy legal practice no longer left time for writing.
Paul was able to pick up writing again in January 2024, After transitioning his practice to estate administration and management.
Paul害羞草研究所檚 intention is to write primarily about end of life and estate related matters, but he is very easily distracted by other topics.
You are encouraged to contact Paul directly at paul@hlaw.ca with legal questions and issues you would like him to write about.
