Discovering an error in a will can be stressful for executors and beneficiaries alike. A common concern is whether a will containing mistakes can still be probated in British Columbia. In many cases, the answer is yes, but the outcome depends on the nature of the mistake and whether the court can determine the will-maker’s true intentions.
British Columbia law focuses on carrying out the deceased person’s intentions rather than invalidating wills over technical defects. However, even correctable mistakes can delay probate and increase legal costs if not addressed properly.
What Is Probate in British Columbia?
Probate is the court process through which the Supreme Court of British Columbia confirms the validity of a will and grants the executor authority to administer the estate. Once probate is granted, the executor can collect assets, pay debts, and distribute the estate according to the will.
When a will contains mistakes, the court must decide whether those errors can be interpreted, corrected, or cured under BC law. In some cases, errors in a will may require additional court steps or supporting evidence as part of the probate application.
When a Will With Mistakes Can Still Be Probated
Not every mistake in a will prevents probate. Many wills containing errors are successfully probated when the testator’s intentions are sufficiently clear.
Minor Errors and Clerical Mistakes
Small mistakes, such as spelling errors, typographical issues, or minor inconsistencies, generally do not prevent a will from being probated. If the meaning of the will is clear, the court will often interpret it in a way that gives effect to what the deceased person likely intended, rather than focusing on technical imperfections.
Errors That Do Not Change the Testator’s Intent
If a mistake does not materially affect how the estate is to be distributed, probate may still proceed without issue. For example, if a beneficiary is misnamed but can be clearly identified from the surrounding context, the court may allow the will to be interpreted accordingly.
While these issues may appear straightforward, executors should still proceed cautiously, as third parties such as banks or the Land Title Office may require confirmation before acting.
Court Powers Under WESA
British Columbia’s Wills, Estates and Succession Act (WESA) gives the court broad authority to deal with mistakes in wills. Under this legislation, the court may interpret, rectify, or even validate a will if it is satisfied that the document reflects the deceased person’s true intentions, despite errors or deficiencies.
These powers allow the court to focus on substance over form, but they must be exercised through proper legal processes.
When Mistakes May Prevent or Delay Probate
Some mistakes raise more serious concerns and can prevent probate from proceeding smoothly, or at all, without court intervention.
Invalid Execution or Witnessing
One of the most significant issues arises when a will is not properly signed or witnessed. In British Columbia, a will generally must be signed by the will-maker in the presence of two witnesses, who must also sign.
If these formalities are not met, the will may be considered invalid unless the court chooses to validate it under WESA. Improper execution often requires a court application and can substantially delay probate.
Ambiguous or Contradictory Provisions
Wills that contain contradictory clauses or unclear instructions can be difficult to administer. If the court cannot determine the testator’s intentions with sufficient certainty, probate may be delayed or the will may be challenged.
In extreme cases, ambiguity can result in parts of the will being unenforceable, leading to partial intestacy or court-ordered interpretations.
Evidence of Undue Influence or Lack of Capacity
Mistakes in a will combined with concerns about mental capacity or undue influence can significantly jeopardize probate. Errors that raise questions about whether the testator understood what they were signing, or whether they were pressured into making changes, may lead to litigation and prolonged delays.
How BC Courts Fix or Validate Mistakes in Wills
Section 58 of WESA: Curing Formal Deficiencies
Section 58 of WESA allows the court to treat a document as a valid will or alteration even if it does not meet formal legal requirements. The key question is whether the document represents the deceased person’s deliberate, fixed and final testamentary intention.
The court may consider extrinsic evidence, including draft wills, lawyer’s notes, emails, text messages, or witness testimony. While informal documents can be validated, this process is discretionary and often contested.
Section 59 of WESA: Rectification of Errors
Section 59 of WESA applies where a will is formally valid but contains errors in wording that fail to reflect the will-maker’s true intentions. This may include typographical mistakes, drafting errors, or misunderstandings of instructions.
Rectification applications generally must be brought within 180 days of the grant of probate, although extensions may be granted in appropriate circumstances.
Why Even Correctable Mistakes in Wills Can Cause Problems
Even when a will with mistakes can ultimately be probated, errors frequently lead to delays, increased legal costs, and disputes between beneficiaries. Executors may be required to seek court directions or defend challenges, and distributing the estate too early can expose them to personal liability.
When to Speak With a Probate Lawyer
If you are an executor dealing with a will that contains mistakes, or if you have concerns about whether a loved one’s will can be probated, it is important to seek legal advice early. A probate lawyer at Westcoast Wills & Estates can assess the severity of the errors, advise on applications under WESA, and help executors fix all manner of mistakes in wills. Please contact our office today to book your consultation.
