Section 36 of the new Wills, Estates and Succession Act (WESA) says that a person who is 16 years old and mentally capable of doing so can make a will. A 16 year old making a valid will is new in British Columbia estate law. Every British Columbia and Vancouver estate lawyer is now learning new wills and estate rules. Before March 31, 2014 when WESA came into effect, with certain exceptions a young person had to be 19 years old to make a valid will. Now a 16 year old can make a valid will.
Section 37 of WESA sets out the 3 requirements for a valid will. The will must be in writing, signed at the end by the will-maker in the presence of 2 witnesses present at the same time, and signed by the 2 witnesses in the presence of the will maker.
So are children more mature today? Right about now, mom and dad are probably wondering whether their 16-year-old is mentally capable at all, much less mentally capable of making a valid will. In British Columbia, the age of majority is 19 years old. Coincidentally, section 19 of the Infants Act says that with certain exceptions, a contract made by a person who is an infant is not enforceable.
Many so-called infants own cars, sometimes valuable cars. Regrettably, the leading cause of death (about 50%) for teenagers are accidents. According to the American Centers for Disease Control and Prevention, the risk of death for young men increases by 30% each year between the ages of 12 and 19. It is unlikely that many British Columbia teenagers will be rushing to lawyers to prepare their first will. It is equally unlikely that any British Columbia estate lawyers will be seeking them out. Some parents may find it disturbing that their 16 year old son can disinherit them and leave everything to a new girlfriend. Some estate lawyers may find it uncomfortable that wills can now be be a little less formal than they were in the past.
Section 58 of WESA grants the Supreme Court of British Columbia the power to order that a record or document be fully effective as the will of a deceased person even though it does not comply with WESA. In keeping with the 21st century, the definition of record includes data that is recorded or stored electronically, can be read by a person and is capable of reproduction in a visible form. It will be interesting to see how the courts will treat electronic wills and text wills on this new frontier. Some Vancouver estate lawyer is likely to be dealing with British Columbia’s first e-will in the not too distant future.
No, parents do not qualify under the WESA Change Will section 60 because they are not a spouse or child. Until your son or daughter gets married, lives with someone in a spousal relationship or has children, he or she has total testamentary autonomy including from parents. Doesn’t seem fair, does it?