Under the Wills, Estates and Succession Act (WESA), which came into force on March 31, 2014, any person 16 years of age or older can make a Will. The question is, what constitutes a valid Will? Section 37 of WESA states:
37 (1) To be valid, a will must be
(a) in writing,
(b) signed at its end by the will-maker, or the signature at the end must be acknowledged by the will-maker as his or hers, in the presence of 2 or more witnesses present at the same time, and
(c) signed by 2 or more of the witnesses in the presence of the will-maker.
(2) A will that does not comply with subsection (1) is invalid unless
(a) the court orders it to be effective as a will under section 58 [court order curing deficiencies],
(b) it is a will recognized as valid under section 80 [validity of wills made in accordance with other laws], or
(c) it is valid under another provision of this Act.
Under normal circumstances, a Will is signed by the will-maker in front of two witnesses (who are not named in the Will) and each witness signs the Will acknowledging that they were both present at the same time when the Will was signed.
Under WESA, there are some circumstances where a testamentary document in another form may be considered by the Court as a person’s last intentions. Section 58 of the Act deals with curing deficiencies and rectification of Wills by Court Order:
58 (1) In this section, “record” includes data that
(a) is recorded or stored electronically,
(b) can be read by a person, and
(c) is capable of reproduction in a visible form.
(2) On application, the court may make an order under subsection (3) if the court determines that a record, document or writing or marking on a will or document represents
(a) the testamentary intentions of a deceased person,
(b) the intention of a deceased person to revoke, alter or revive a will or testamentary disposition of the deceased person, or
(c) the intention of a deceased person to revoke, alter or revive a testamentary disposition contained in a document other than a will.
(3) Even though the making, revocation, alteration or revival of a will does not comply with this Act, the court may, as the circumstances require, order that a record or document or writing or marking on a will or document be fully effective as though it had been made
(a) as the will or part of the will of the deceased person,
(b) as a revocation, alteration or revival of a will of the deceased person, or
(c) as the testamentary intention of the deceased person.
(4) If an alteration to a will makes a word or provision illegible and the court is satisfied that the alteration was not made in accordance with this Act, the court may reinstate the original word or provision if there is evidence to establish what the original word or provision was.
What this means is that any written intention, including documents stored electronically, can be brought before the Court to be considered as a will-maker’s last wishes. The process for proving a will-maker’s intentions in another form or for curing deficiencies in the Will may be costly so it is imperative to have a valid Will in place to help protect your estate and carry out your last wishes as you had intended.
