Wills & Estates Archives - Garton & Harris

PART 4 — Deathbed Wills in British Columbia: Can Last-Minute Changes Be Valid?

July 30, 2026/in Wills & Estates/by gartonandharris

The Modern Reality of Estate Planning

Many people assume that a will must be prepared by a lawyer, signed formally, and witnessed in strict compliance with the Wills, Estates and Succession Act (“WESA”) to be valid. While formal compliance remains the gold standard, British Columbia law recognizes an important reality: people sometimes make genuine testamentary decisions shortly before death and do not always have the ability or opportunity to comply with the usual formalities.

This is where “deathbed wills” become important.

A deathbed will is not a separate legal concept under WESA. Rather, it is a term commonly used to describe a will or testamentary instruction made near the end of a person’s life, often in circumstances involving illness, hospitalization, declining capacity, or urgency.

The legal question is not whether the document was created shortly before death. The question is whether the document represents the deceased’s fixed and final testamentary intentions.

The Traditional Rule

Historically, informal testamentary documents were frequently found invalid because they failed to comply with formal execution requirements.

A document might:

lack witnesses;
contain handwritten alterations;
be unsigned;
exist only in electronic form; or
consist merely of notes or instructions.

Prior to the curative provisions discussed below, many such documents would never have been admitted to probate.

WESA Changed the Law

British Columbia now has one of the most flexible estate regimes in Canada.

Section 58 of WESA permits the Court to order that a document or record be fully effective as though it had been executed as a valid will.

This includes:

handwritten notes,
computer documents,
electronic records,
text messages,
draft wills, and
other informal records.

The focus has shifted from formality to intention.

The Critical Issue: Testamentary Intention

The Court must decide whether the document reflects the deceased’s deliberate and fixed intentions regarding the distribution of their estate.

Questions often include:

Did the deceased intend the document to govern their estate?
Was it intended to replace an earlier will?
Was it merely a draft or set of instructions?
Was the document completed voluntarily?
Did the deceased possess testamentary capacity at the time?

The closer the evidence comes to establishing a settled and final intention, the greater the prospect that the document will be validated.

Real-World Example: The Fleury Matter

Our office has firsthand experience with these issues.

Garton & Harris, including Qahir Jiwan, acted for the Petitioner in a matter involving a Coquitlam woman whose late-life testamentary revisions became the subject of court proceedings. The case attracted public attention because the Court was asked to determine whether the deceased’s last-minute changes should be given legal effect.

Cases of this nature demonstrate how modern estate litigation frequently involves documents that would once have been dismissed as legally ineffective.

Practical Takeaway

If a loved one left:

handwritten notes,
instructions to family members,
unsigned drafts,
electronic records, or
last-minute amendments,

all is not necessarily lost.

In British Columbia, these documents may still be capable of being enforced. However, success depends heavily on the surrounding evidence, making early legal advice critical.

The Evidence Playbook: How Will Challenges Are Won (or Lost) in BC

June 18, 2026/in Estate Planning, Wills & Estates/by gartonandharris

Disclaimer: This article is general information and not legal advice. Evidence rules and procedure matter.

The core principle: Courts decide will contests based on the evidentiary record

Most clients begin with a narrative: “This doesn’t make sense.” Courts require more. The winning approach is an evidence-first build: capacity, knowledge/approval, and undue influence must be proven (or disproven) using admissible evidence, with suspicious circumstances serving as the lever that changes burdens and presumptions.

Recent BC appellate discussion illustrates the point: what matters is the evidence capable of grounding suspicious circumstances and then supporting (or undermining) knowledge and approval. Courts examine how instructions were obtained and whether the will-maker’s intention was truly their own.

Evidence Bucket #1 — The drafting file (lawyer/notary notes are often the spine of the case)

In many will challenges, the drafting professional’s file becomes the backbone: notes on who attended meetings, how instructions were provided, whether the will-maker appeared to understand the document, and whether the will was read to or by the will-maker. The presumption described in Vout v. Hay is closely tied to whether the will was duly executed and read/understood; where that is unclear, the propounder’s (person applying for probate) job becomes harder.

Where a beneficiary is involved in giving instructions or initiating changes, courts scrutinize the process closely. The factual pattern described in commentary about significant departures from prior wills and beneficiary-driven instruction pathways illustrates why.

Evidence Bucket #2 — Medical evidence (capacity is often proved by “ordinary” records)

Capacity disputes are frequently built using ordinary medical records: GP notes, hospital charts, cognitive testing, diagnoses, medication changes, and functional assessments. BC commentary highlights that capacity is assessed at the relevant times and that dementia and neurocognitive disorder evidence can become pivotal.

A practical point: a diagnosis does not automatically eliminate capacity, and lack of a diagnosis does not prove capacity. The question remains functional: could the will-maker understand the nature and effect of the will, their property, and the claims of potential beneficiaries?

Evidence Bucket #3 — Lay witness evidence (the people who saw the will-maker day-to-day)

Courts often rely on credible lay observations to contextualize medical evidence. This includes caregivers, friends, neighbours, and family members who can speak to memory, orientation, comprehension, susceptibility, and independence. Where the will-maker’s functioning fluctuated, the day‑to‑day record can be decisive.

However, lay evidence must be handled carefully: courts look for specifics (what was said, what was understood, what decisions the will-maker could or could not make), not conclusions (“she was manipulated”).

Evidence Bucket #4 — “Suspicious circumstances” indicators (the three Vout categories)

A best-practice way to assess viability is to map facts onto the three Vout categories: circumstances around preparation; circumstances calling capacity into question; and circumstances suggesting coercion or fraud. If your facts do not fit into these buckets with real evidence, the challenge may be vulnerable to early dismissal or adverse costs risk.

Examples of commonly cited suspicious features include major changes from a prior will, beneficiary control of access or communications, and instruction pathways that bypass direct confirmation with the will-maker. These are not automatic proof, but they can “excite the court” enough to require the propounder to dispel the suspicion.

Evidence Bucket #5 — Undue influence proof (WESA s. 52 + surrounding circumstances)

Undue influence cases are often won by building a circumstantial record showing dependence, vulnerability, and domination dynamics. WESA s. 52 is specifically designed to address this scenario by shifting the burden in certain relationships.

BC commentary describes the kinds of surrounding circumstances courts consider: vulnerability, dependency for care, and control (including isolation and gatekeeping). The key is connecting those circumstances to the will’s procurement and the resulting benefit.

For practitioners, the British Columbia Law Institute’s guide on undue influence recognition and prevention is also a useful lens for identifying red flags (particularly where a will-maker may be vulnerable).

A disciplined approach: what to gather first (the “48-hour evidence list”)

If a will contest is a serious possibility, early evidence preservation often matters more than later discovery:

Copy of the will(s) and prior estate planning documents
Timeline of health events near instruction/execution dates
Names/contact of witnesses to execution and key caregivers
The drafting professional’s identity (to pursue the file)
Communications showing who initiated changes (emails/texts)
Any evidence of isolation, gatekeeping, or dependency leverage

Costs risk: weak or speculative challenges can backfire

Courts increasingly emphasize proportionality and will not permit estate litigation to become an evidence‑fishing expedition. Public commentary on BC decisions highlights the court’s willingness to manage or summarily resolve weak claims where the record does not justify a full trial process.

A party who advances a speculative or weak will challenge claims without a proper evidentiary foundation may face significant adverse costs consequences if the claim is unsuccessful. Therefore, taking early steps to preserve evidence can make or break your claim.

Contesting a Will in BC: The Legal Framework & the Three Core Grounds (Capacity, Knowledge/Approval, Undue Influence)

May 28, 2026/in Estate Planning, Wills & Estates/by gartonandharris

Disclaimer: This article provides general information, not legal advice. Every case turns on its own facts and evidence.

The starting point: a will is presumed valid—until “suspicious circumstances” are raised

In British Columbia, a will challenge is not about whether the result is “fair” (that is usually a wills variation issue). A validity challenge asks a narrower question: is the will legally effective? The framework begins with formal validity (proper execution) and then moves to substantive validity—whether the will-maker had capacity, knew and approved the contents, and acted freely.

Where the will was duly executed and appears to have been read by or to the will-maker, the law generally starts with a presumption that the will-maker had capacity and knew and approved its contents. That presumption can be displaced by well‑grounded suspicious circumstances, which then require the party propounding the will to prove capacity and knowledge/approval on a balance of probabilities (and, in practice, to “answer” the suspicion).

This matters because most estate disputes are decided on the quality of the record, not the rhetoric. A court will not invalidate a will based on a generalized sense that something “feels off.” The suspicion must be anchored in evidence.

Formal validity: WESA’s execution requirements

Section 37 of British Columbia’s Wills, Estates and Succession Act (WESA) sets the baseline for a formally valid will, including execution requirements and minimum age. If the will fails formal requirements, that is a different pathway (often involving WESA s. 58 “curative” applications), which is distinct from proof in solemn form and should not be conflated.

For a typical validity contest, however, the practical focus is usually not “was there ink on the page,” but whether the will-maker had the requisite mental capacity, knowledge and approval, and freedom from undue influence at the critical times.

Ground #1 — Testamentary capacity (the “disposing mind and memory”)

Capacity is assessed at the time will instructions are given and at execution (and capacity can fluctuate). BC courts continue to use the classic capacity framework (often traced to Banks v. Goodfellow), and BC authority confirms the practical elements: understanding the nature and effect of making a will, the general extent of one’s property, and the claims of those who might reasonably expect to benefit.

A key point for litigators and clients: capacity disputes are highly fact‑specific. Courts examine the will-maker’s functioning in real life—medical records, observed cognition, and whether the will-maker could understand and weigh the relevant considerations at the material times.

Practical indicators courts commonly care about

While every case is unique, capacity disputes tend to turn on evidence such as: contemporaneous medical notes, dementia or neurocognitive disorder markers, medication effects, hospitalizations, and reliable lay observations of confusion or inability to understand the transaction. These are not “automatic” winners, but they are often the building blocks of a serious record.

Ground #2 — Knowledge and approval (did the will-maker understand what they signed?)

Even where the will-maker has baseline capacity, the propounder must still show the will-maker knew and approved the contents of the will. The doctrine becomes critical when there are suspicious circumstances—especially if someone else drove the process (instructions, drafting, or execution logistics).

The Supreme Court of Canada in Vout v. Hay explains how suspicious circumstances interact with knowledge/approval and capacity, including that the presumption can be spent when the evidentiary record raises concerns in categories such as (i) preparation, (ii) capacity, or (iii) coercion/fraud. BC cases regularly apply this framework.

Recent BC appellate commentary underscores that suspicious circumstances must be grounded in evidence and that the court scrutinizes whether the will-maker genuinely understood and accepted the will’s contents, particularly where major changes were made and a beneficiary was instrumental in the process.

Ground #3 — Undue influence (WESA s. 52 and the burden shift)

Undue influence is not ordinary persuasion. It concerns whether the will reflects the will-maker’s free agency, or whether someone in a relationship of dependence or dominance overbore that agency.

In BC, WESA s. 52 is a major statutory tool: where a person is in a position where the potential for dependence or domination of the will-maker exists, the burden can shift to the person seeking to uphold the will to disprove undue influence. This recognizes a real-world litigation problem: direct evidence of coercion is rare.

Recent BC decisions and commentary illustrate how courts evaluate undue influence through surrounding circumstances—dependency, vulnerability, control over access, isolation, and the beneficiary’s involvement in the will‑making process.

“Suspicious circumstances” is not a standalone claim—but it changes everything

A common misconception is that “suspicious circumstances” is itself a cause of action. It is better understood as an evidentiary doctrine: it can remove presumptions and force the propounder (person seeking to probate a will) to prove capacity and knowledge/approval on a balance of probabilities, proportionate to the gravity of the suspicion.

BC appellate guidance also warns that a generalized cloud of suspicion is not enough—what is required is evidence capable of undermining the foundational elements. That is why serious will challenges are built like any other civil case: plead tightly, prove with admissible evidence, and avoid speculation.

When to speak to counsel (practical triggers)

Consider getting immediate legal advice if: (1) the will was made during a serious illness, hospitalization, or cognitive decline; (2) a beneficiary arranged the lawyer/notary, provided “instructions,” or controlled attendance; (3) there was a dramatic late‑life change from prior estate plans; or (4) there are credible concerns about coercion, isolation, or dependency dynamics

If you believe you have grounds to challenge a will, contact our office promptly. Early steps—such as preserving evidence and considering a notice of dispute—can be critical.

Are do-it-yourself wills worth the risk?

September 6, 2020/in Wills & Estates/by gartonandharris

More than half of those living in British Columbia do not have an estate plan. It may be easy to list the reasons why, including the fear of facing their mortality, misconceptions about the purpose of an estate plan and, of course, the cost. Therefore, it might seem that those who choose do-it-yourself kits to create their wills have an advantage over those who die without an estate plan in place. However, some financial advisors strongly disagree.

A DIY will kit offers a will template for a nominal fee, and some websites even offer free downloads. The problem with a one-size-fits-all will is that every situation is unique. No template can cover every contingency or provide protections for special concerns that every family has. Additionally, DIY kits provide little to no assistance for those who may have questions. Even worse, many who use such kits may not even know what questions they should be asking.

Without knowledge of probate laws, someone using a will kit may not realise he or she has made a small but significant mistake. The ones who will deal with that mistake are those left behind after the will maker dies. In some cases, families are left with no recourse when a DIY will contains an error that results in a very different outcome from what the deceased would have wanted.

Wills can address far more than who inherits the assets in an estate. Those in British Columbia who have children, blended families, special needs or unique assets, among other things, would be wise to seek professional assistance when they decide to create their estate plans. Putting off estate planning is risky, but DIY wills may carry an even greater risk.

How to “stress test” a will throughout one’s life

August 20, 2020/in Wills & Estates/by gartonandharris

Some people may consider estate planning a “set it and forget it” exercise. However, without regular review, British Columbia estate planners may find that their wills become outdated, or they may miss key elements altogether. Regular stress tests, ideally done as a family with the support of a legal professional, can prevent mistakes or gaps in planning.

First, ensure important documents are in place, such as a will, business succession plan and deeds. Review these to ensure the plans initially put in place still make sense. Has the business changed, making the succession plan now impractical? Are the family’s priorities and intention still reflected in these documents? These are important questions to ask during the regular review.

Sometimes, logistics may impact whether or not estate plans are truly practical. Someone named as a power of attorney, for example, may have relocated out of the province or country. An executor may have grown his or her family or taken on a challenging job, thereby making him or her less available to manage the responsibilities of that position. Taking stock of the situation for all involved, not just the planner, is a key part of this stress test.

Finally, the last step is to communicate and set expectations. It is possible that beneficiaries might believe they will receive more in the estate than is reasonable, or even available. This can lead to conflict down the line, making expectation-setting an important part of the regular review. Those with questions about when and how to review and adjust their wills and estate plans should discuss their situation with a British Columbia lawyer.

Are wills necessary if all assets have joint ownership?

August 7, 2020/in Wills & Estates/by gartonandharris

There are many reasons people might put off estate planning. One common reason is that they believe that it is unnecessary since all assets are co-owned by a spouse or, less commonly, children. The thought process here is that if one dies, the other will simply inherit the assets. While this might seem straightforward, forgoing wills for joint ownership can have negative consequences for some British Columbia families.

The first reason why this approach can backfire is that it is very difficult to remember every asset. While major assets like a home or bank account are unlikely to fly under the radar, personal items like jewellery, a piece of art, or a family heirloom may not have a designated co-owner. This can lead to conflict or ill feelings, and the court may need to step in to designate ownership of items, which is usually not preferable.

There is also the matter of both co-owners dying at the same time. In that case, the court would determine who receives the remaining items according to intestacy laws. This can get dicey when it is unclear which co-owner died first and, therefore, whose next of kin is entitled to the asset upon death.

Once it is determined who gets the asset, additional complications can arise due to the fact that the beneficiary will receive the amount or ownership in full with no stipulations. This increases the risk that the asset will be mismanaged, especially if the next of kin is not financially responsible or personally prepared for the acquisition. These factors combined make it clear that discussing wills with a British Columbia lawyer is a good idea, regardless of one’s joint ownership situation.

How should individuals update their wills following a divorce?

July 23, 2020/in Wills & Estates/by gartonandharris

When marriages end, there are many short-term and long-term legal, financial, and logistical considerations. One significant thing British Columbia divorcees should consider is how the divorce will impact their estate plans. Spouses have significant roles and entitlements when it comes to their partner’s plans for incapacity or death. As such, it is important to revisit wills when a marriage is in the process of ending.

There are many documents in which a spouse may be named beneficiary. Individuals should review the names on bank accounts, insurance policies and trusts and make adjustments if needed. In addition, it is important to visit one’s estate lawyer to review the power of attorney documents and the will to see if and where the spouse is explicitly named. While some aspects of plans may be automatically invalidated upon divorce, it’s wise to avoid any outdated language in the official will to prevent plans being called into question.

Trusts are a different matter altogether. In fact, most trusts will be considered in the divorce agreement, and decisions about what will happen to them may be made at that time. An ex-spouse may therefore still become the beneficiary of an irrevocable trust, depending on the circumstances and agreement.

There are many planning decisions that may need to be revisited upon divorce. Who will be the executor of the estate? Should a former spouse still receive some money, particularly if there are minor children involved? A British Columbia lawyer can help to clarify these estate and family law issues, and revise wills accordingly.

Preventing conflict over wills with support and communication

July 9, 2020/in Wills & Estates/by gartonandharris

Dealing with an estate after a family member passes away can be challenging and emotional, even if everyone is getting along. British Columbia families with pre-existing tension, complicated estates or mixed opinions are particularly at risk for conflict if wills are incomplete, confusing or unexpected. For that reason, it’s a good idea for people to take a few careful steps, such as prioritizing legal advice and communicating plans to help prevent friction among their beneficiaries.

The first step in any estate planning process is finding a lawyer who can be trusted and making sure he or she understands the situation at hand. Financial advisors, wealth managers and accountants can also be helpful to consult throughout this process. A full financial overview should be conducted to ensure that no assets are left unaccounted for in estate plans. This process also helps to set the executor up for a successful estate administration by centralizing all the documents one will need in the process.

Finally, it is critical to communicate plans with the family. All beneficiaries should be present at this meeting, as well as anyone implicated in the decisions. In the meeting, the basic intentions of the estate should be shared, along with who has been named as executor, the power of attorney and other involved people. This is also a good time to share one’s own expectations and hopes for the inheritance process, and to ask everyone involved to communicate and be transparent when the time comes.

Advance preparation can make all the difference when preventing conflict in estate administration. Even things that seem small, like preparing an online password list, can make a big difference when the time comes. Individuals who need support drafting wills, or those who have questions and concerns about wills in which they are implicated, should reach out to a British Columbia lawyer.

Besides wills, what estate planning documents should be prepared?

June 25, 2020/in Wills & Estates/by gartonandharris

No one wants to leave his or her family in a challenging predicament when he or she passes away. Deciding where assets will go and how affairs will be handled after death is important for British Columbia adults. Just as important as making these decisions is documenting them in ways that are comprehensive, comprehensible and legally sound. This involves the drafting of documents, particularly wills.

A will is the most well-known estate planning document. It details how all assets and liabilities will be distributed after death. It also clarifies issues such as guardianship for dependant children. Finally, it explains who will be responsible for overseeing the distribution of assets according to what is documented. Without a will, an individual’s estate will be divided according to provincial estate law.

Documentation pertaining to power of attorney are also important in end-of-life planning. There are many circumstances in which it may become impossible for an individual to make decisions for his or her own health or financial affairs; for example, a mental or physical disability. Powers of attorney name trusted individuals to make those decisions if those circumstances are to arise.

Depending on one’s circumstances, other documents may be needed, such as advance medical directives, trusts or even a list of online account passwords. Many British Columbia adults have questions about wills and other documents, including how to ensure they are valid and where to store them. It is best to discuss these matters with a local estate planning lawyer to ensure all affairs are properly in order.

4 things to leave out of a will if you want to prevent conflict

June 5, 2020/in Wills & Estates/by gartonandharris

The death of a loved one can leave friends and family devastated. People can be struggling with grief and sadness; some may feel lost or alone. Adding a controversial or confusing will to the mix can make the situation even more upsetting because it can create a complicated legal environment that loved ones must navigate.

Jilted or angry parties could wind up contesting the will, which can create even more conflict and possible delays in the property distribution process. To prevent this, will-makers can leave the following out of their will:

Unpleasant surprises – A will is likely not the best place to reveal unpleasant surprises. Matters like true parentage, extensive property losses or grievances can be especially disturbing to people who are already struggling with a death. Such news could increase the likelihood of fights and legal battles. Therefore, reconsider using a will as a weapon or way to break bad news to family.
Unequal gifts – There are many reasons people may want to leave unequal gifts to children or other heirs, but you could be creating more problems than you might solve. Unequal gifts can make it unnecessarily complicated to administer an estate. Further, it can create or exacerbate strain among beneficiaries. And in British Columbia, unfair gifts could be the basis on which someone can contest a will.
Confusing terms – Leaving anything open to interpretation can result in clashes among beneficiaries. To prevent this, make sure your wishes and conditions are clear and direct. Provide an explanation in your will or to your lawyer if you worry that something may be misconstrued.
Controversial requests – Estate executors already have a lot to manage when it comes to fulfilling their duties, and most parties are committed to carrying out a decedent’s wishes properly. Requesting something controversial, hurtful or even unlawful puts them in a very uncomfortable position. Consider carefully what you are asking someone to do when you include problematic requests in a will.

Leaving these elements out of a will can make the administration process less painful and thorny.