Can an unsigned will be valid?

After his grandfather died in Canada, Louis flew over from Germany. He was cleaning out the house and trying to get the papers that he found in his grandfather’s old sideboard in order.  Among them was a something that looked like a will – but without his grandfather’s signature.  Louis figured it must be a draft, and held onto it, but it couldn’t be important…. could it?

Normally, a Canadian will needs to be signed by the will maker, and by two witnesses who saw them sign the will.  A notary’s signature is normally not required, except in some cases in the Province of Quebec.  These requirements help to ensure that the document is an authentic will, and that the will maker has seriously considered their intentions for their property after they die by recording them in their will.

Unsigned wills don’t serve these important purposes.  As such, they might initially seem to be just drafts, but in many Canadian provinces (including British Columbia and Manitoba), the court has discretion to order that an unsigned will (or a will that hasn’t been dated or witnessed properly) has the same power to distribute property that it would have, had it been properly executed.  A similar change will be coming into force in Ontario later this year as well.

While the court’s discretion in this regard is very broad, it isn’t unlimited.  The court needs to find that the unsigned will really was made by the person it claims, and that it reflects the deceased person’s intentions for their estate.  Normally, this will involve other statements that the will maker may have made before their death to friends and family, or instructions that they had given to their lawyer.  IF the court believes that the unsigned will is authentic, and reflects the will maker’s final intentions properly, they are able to find that it is effective, even without a signature, date, or witnesses.

Normally, courts will look at a few factors, such as how recently the unsigned will was prepared before the will maker’s death, and statements that he or she made about their intentions for their estate after their death, to help confirm that the will should be accepted, even without a signature.  

So when you’re looking through a relatives papers and find an unsigned will, don’t shred it right away – it may still be an important part of what comes next.

As a leading law firm specialized in Canadian and German law Jacob Associates is active on both sides of the Atlantic. We focus on advising clients from Canada and the U.S. with business interests in Germany as well as German clients with legal issues in Canada. Our strength is cross-border corporate & commercial law as well as litigation, wills & estate law, real estate law and immigration law. Sylvia A. Jacob, founder and owner of the law firm Jacob Associates is registered to the bars in Canada, Germany and England & Wales. She is recognized as a pioneer in German-Canadian law culture.

Contact us now, if we can help you in Germany with Canadian inheritance issues.

 

Inheritance