Valid Deathbed Will in BC: Court Confirms One-Page Will Under WESA

Can a person sign a will on their deathbed and still meet the legal requirements for a valid deathbed will in BC? The decision in Re Bach Estate, 2017 BCSC 548, shows that the answer can be yes. In that case, the Supreme Court of British Columbia confirmed the validity of a simple, one-page will signed the night before the will-maker died.

Background: A Last-Minute Will Leaving Everything to One Sister

Mr. B signed a short handwritten will shortly before he passed away. The document left his entire estate to one sister, Ms. S, and excluded his other sisters, children, and stepchildren. Ms. S applied for a declaration that the will was valid. One of the stepchildren opposed the application and claimed that Mr. B did not have the capacity to make a will.

Because many wills and estate disputes involve late-signed documents, the case offers important guidance for assessing a valid deathbed will in BC.

Testamentary Capacity: The Banks v. Goodfellow Standard

To make a valid will, a person must understand:

  • The nature of making a will

  • The property they own

  • The people who might expect to inherit

  • The effect of including or excluding certain individuals

The classic test for testamentary capacity comes from Banks v. Goodfellow (1870), which courts still apply today. The standard is “not particularly onerous,” meaning a person can have capacity even if they are ill or very close to death.

When a will is properly signed and witnessed under the Wills, Estates and Succession Act (WESA), the law presumes that the will-maker had capacity. In this case, the will was witnessed by a doctor who heard Mr. B read the document aloud and confirm he understood it. That evidence supported the presumption of capacity.

Section 37 WESA: Formal Requirements for a Valid Will

For a valid deathbed will in BC, section 37 of WESA requires:

  • The will must be in writing

  • It must be signed by the will-maker

  • Two witnesses must be present when the will-maker signs

  • Each witness must sign in the presence of the will-maker

Section 40 sets out rules for witnesses. A person may witness a will even if they receive a gift under it, but that gift may be void unless the court orders otherwise.

The Witness Problem: Was the Gift Void?

Although the one-page document met the usual requirements, one of the witnesses was the husband of the sole beneficiary, Ms. S. Under section 43 of WESA, a gift to a witness—or the spouse of a witness—can be void unless the court finds that the will-maker truly intended to make the gift.

Before WESA, the court had no discretion. The gift would be automatically void. But WESA changed that. Now, judges may uphold a gift if the evidence shows genuine intention.

The Court’s Decision: The Will Was Valid

In Re Bach Estate, Justice Kelleher found:

  1. Mr. B had the required testamentary capacity.

  2. He knew and approved the contents of the will.

  3. The will met the formal signing requirements.

  4. Evidence from friends and relatives supported his intention to benefit Ms. S.

Because the evidence showed true intention, the court exercised its discretion under s. 43 and upheld the gift. This confirmed the one-page document as a valid deathbed will in BC.

Conclusion

A will signed shortly before death can still be legally valid in British Columbia if it meets the formal requirements of WESA and the will-maker had capacity. Re Bach Estate shows that the court will uphold a valid deathbed will in BC when the evidence demonstrates genuine intention and compliance with the law.

If you are dealing with a disputed will or a last-minute estate change, our estate litigation team can help you understand your rights and options.

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