LAW REFORM COMMISSION OF BRITISH COLUMBIA REPORT ON THE MAKING AND REVOCATION OF WILLS LRC 52 September, 1981 The Law Reform Commission of British Columbia was established by the Law Reform Commission Act in 1969 and began functioning in 1970. The Commissioners are: The Honourable Mr. Justice John S. Aikins, Chairman Peter Fraser Kenneth C. Mackenzie Bryan Williams Anthony F. Sheppard Arthur L. Close Anthony J. Spence is Counsel to the Commission. The Commission's staff lawyers are Frederick W. Hansford, Thomas G. Anderson and Gail P. Black. Sharon St. Michael is Secretary to the Commission. The Commission offices are located on the 10th Floor, 1055 West Hastings Street, Vancouver, B.C. V6E 2E9. Canadian Cataloguing in Publication Data Main entry under title: Report on the making and revocation of wills “LRC 52". Includes bibliographical references. ISBN 0-7718-8283-1 1. Wills - British Columbia. I. Law Reform Commission of British Columbia. KEB245.A72L38 346.711'05'4 C82-092000-2 TABLE OF CONTENTS Page I. INTRODUCTION 10 A. Historical Introduction 10 B. Succession Law Reform in Other Jurisdiction 12 C. Subjects Discussed in this Report 14 D. Terminology 14 II. TESTAMENTARY CAPACITY OF MINORS 16 A. Who May Make a Will? 16 B. Exceptions to the Minimum Age 17 1. Applications for Capacity 17 (a) Generally 17 (b) Would the Proposal be Useful? 18 (c) Should the Minor be Required to Obtain Approval? 18 (d) Who Should Approve the Execution of a Will? 18 (e) Should a Specific Will be Authorized? 19 2. Marriage 19 C. Military Personnel and Mariners 20 D. Recommendation 21 III. FORMAL REQUIREMENTS 23 A. Introduction 23 B. The Purpose of Formalities 23 C. Oral Wills 24 D. Privileged Wills 25 1. Elements of the Privilege 25 2. Current Armed Forces Practice 26 3. Privileged Wills - Frequency of Use 26 4 . Reform 27 E. Formally Executed Wills 29 1. The Will Must be Signed at the End 29 (a) "Signed" 29 (b) "At the End" 31 2. The Testator Must Sign in the Presence of Two Witnesses 32 3. The Two Witnesses Must Sign in the Testator's Presence 34 4. Conclusion 34 F. Informal Wills 35 1. Holograph Wills 35 (a) Uncertain Interaction with the Provisions Respecting Formal Wills 37 (b) Is the Document a Will? 39 (c) Preprinted Forms 39 2. Other Informal Wills 41 (a) Generally 41 (b) Substantial Compliance 42 (c) A Dispensing Power 45 (i) Generally 45 (ii) Canada: The Indian Act 45 (iii) South Australia 45 (iv) Israel 47 (v) Manitoba 49 (vi) England 49 3. A Dispensing Power for British Columbia 50 (a) Issues Bearing on the Introduction of a Dispensing Power 50 (i) Will the Provision Result in a Multiplicity of Forms of Wills? 50 (ii) Will the Result be Increased Litigation Due to the Possibility of Numerous Contending Testamentary Documents? 51 (iii) Will the Provision Result in Undue Delay in the Administration of Estates? 52 (iv) Are There Other Superior Methods of Accomplishing the Same Ends? 52 (v) Will a Dispensing Power Prevent the Frustration of Testamentary Intent? 53 (vi) Will Uncertainty be Increased or Reduced? 53 (b) The Scope of a Remedial Power 53 (c) Threshold Requirements 54 (i) Generally 54 (ii) Writing 54 (iii) Signature 55 (iv) Burden of Proof 56 (d) Transition 57 (e) Recommendation 58 (f) The Probate of Informal Wills 58 G. International Form of Wills 60 1. The Convention 60 2. The Mechanics of Introducing International Wills into British Columbia 64 3. Authorized Persons 65 (a) Inside the Province 65 (i) Lawyers 65 (ii) Notaries 65 (iii) Foreign Consular Agents in British Columbia 66 (iv) Other Persons 66 (b) Outside the Province 67 IV. ALTERATION AND REVOCATION 68 A. Alteration 68 B. Revocation 70 1. Present Rules 70 2. Intentional Revocation 71 (a) The Current Law 71 (b) Actions for Reform 74 (i) Create New Procedures 74 (ii) Extend the Dispensing Power 74 (c) Recommendation 74 3. Revocation by Operation of Law 75 (a) Partial Revocation on Marriage Breakdown 75 (b) Revocation of a Will on Marriage 77 V. WITNESSES 81 A. Competency of a Witness 81 B. Testamentary Gift to Witnesses 83 1. Generally 83 2. Alternatives for Reform 85 (a) Repeal the Prohibition 85 (b) Substitute the Intestate Benefit 86 (c) Provide Relief from Forfeiture of the Request 87 3. Recommendation 87 VI. DESIGNATION OF BENEFICIARIES OF INTERESTS IN FUNDS OR PLANS 89 A. Characteristics of Plans 89 B. Present Legislation 90 1. Life Insurance 90 2. Accident Insurance 91 3. Employment Benefit Plans 91 4. Registered Retirement Savings Plans 92 5. Registered Home Ownership Savings Plans 92 C. Reform 93 1. General 93 2. Uniform Retirement Plan Beneficiaries Act 93 (a) Definition of Participant 94 (b) Definition of a "Plan" 94 (c) Form of Designation and Revocation 94 (d) Rights of the Parties 95 (e) Republication 95 (f) Recommendation 97 3. Revocation of Designations 97 (a) Generally 97 (i) Insurance 97 (ii) RRSP's 98 (iii) RHOSP's 98 (iv) Employee Benefit Plans 98 (v) URPBA 98 (b) Irrevocable Designations 99 (c) Reform 99 (i) Revocation by Operation of Law 99 (ii) Irrevocable Designations 100 VII CONFLICT OF LAWS 101 A. Introduction 101 1. The Common Law Position 101 2. Formal and Essential Validity 102 3. Movables and Immovables 102 4. Scission 103 5. Renvoi 104 B. Legislative History 106 1. Lord Kingsdown’s Act, 1861 106 2. The Hague Convention 1961 107 3. The Wills Act, 1963,(U.K.) 108 4. The Uniform Law Conference of Canada 108 5. The Uniform Probate Code 1969 109 6. Australia 109 C. Present Law in British Columbia 110 1. Capacity 110 2. Formalities 110 3. Essential Validity and Effect 110 4. Construction 110 D. Reform 111 1. Generally 111 (a) Movables Related to Land 111 (b) Renvoi 112 (c) Wills Made Inside British Columbia 112 (d) Special Foreign Requirements 112 (e) Construction of Wills 113 (f) Jurisdictions With More Than One Legal System 113 2. Choice of Law 113 (a) Formal Validity 113 (i) The Place the Will Was Made 114 (ii) Domicile or Habitual Residence at Time Will Made 114 (iii) Domicile or Habitual Residence at Death 114 (iv) Law of the Place Where Property Located 114 (v) Domicile of Origin 116 (vi) Nationality of Testator 116 (vii) The Lex Fori 117 (viii) Special Cases 119 (b) Essential Validity and Effect 120 (i) Immovables 120 (ii) Movables 120 3. "Immovable" vs. "Interest in Land" 121 E. Revocation in the Conflict of Laws 121 1. Revocation by Express Instrument 122 2. Revocation by Destruction 123 3. Revocation by Operation of Law 123 VIII SAFEKEEPING AND REGISTRATION 126 A. The Present System in British Columbia 126 B. Recent Developments in Other Jurisdictions 127 1. Europe 127 2. The United States 128 3. Canada 129 C. Conclusions 131 IX. SUMMARY OF RECOMMENDATIONS 132 A. Recommendations 132 B. Acknowledgments 136 Appendix H 138 TO THE HONOURABLE ALLAN WILLIAMS, Q.C., ATTORNEY GENERAL OF THE PROVINCE OF BRITISH COLUMBIA: The Law Reform Commission of British Columbia has the honour to present the following: REPORT ON THE MAKING AND REVOCATION OF WILLS In 1978, the Commission added the law of succession to its programme. We recognized from the start that this was an ambitious undertaking, and that it would be necessary to divide the topic into a number of discrete pro- jects. This Report is the first of a series which will examine the law governing the devolution of property on death. Other Reports will address the Interpretation of Wills, The Effect of Testamentary Instruments, Statutory Succession Rights, and Probate Procedure and Administration. In this Report we examine the formalities imposed by statute on the making of testamentary instruments. Our examination is not restricted to wills. In recent years, registered retirement savings plans, registered home owner- ship savings plans, employee benefit plans, and insurance policies have become increasingly signficant. In many cases, money held in such plans forms a large part of a testator's assets. This Report explores a number of issues of concern to a person contemplating the execution of a will, and to a Court of Probate called upon to determine its validity. These issues include the capacity of minors, soldiers' and mariners' wills, the international form of will, the effect of wills improperly executed, the capacity of witnesses, the designation of beneficiaries under various plans, and the formal validity of wills which violate a foreign law made relevant by British Columbia choice of law rules. The Commission has made recommendations concerning all these matters. FOREWORD In 1978, the Commission added a study of British Columbia succession law to its programme. A study of the law respecting the devolution of property on death is inevitably a long and complex undertaking. Recent innova- tions in British Columbia concerning matrimonial property rights have added to the complexity of such a task. Al- though we are aware of the dangers inherent in attempting to deal with any one area of succession law as a discrete topic, it is the only approach that is, realistically, open to us. We think it appropriate, therefore, to outline briefly our approach to this major study. This Report concerns those matters which would generally concern a court of probate. The question of whether a will is validly made is sometimes a difficult one, and our research has led us to conclude that some relaxa- tion of the rules respecting the making of wills is in order. Similarly, it is possible that a testator's attempt to revoke his will may fail, even though a reasonable person having regard to the evidence uwmould be convinced beyond all doubt that the testator no longer intended his will to be effective.