Minimum Age for Will Creation and Helpful Tips: Section 36 of the WESA
Introduction
Planning for the future is not solely the responsibility of adults. In British Columbia, Section 36 of the Wills, Estates and Succession Act (WESA) permits individuals aged 16 and older, provided they possess mental capacity, to create a valid will.
This article highlights the steps involved in drafting a valid will, along with important considerations for young testators and their families.
Who Can Make a Will in BC?
Section 36 of WESA states:
“A person who is 16 years of age or older and who is mentally capable of doing so may make a will.”
“A will made by a person under 16 years of age is not valid.”
Once you turn 16 and have a clear understanding of your actions, you have the legal authority to create a will under British Columbia law. It is important to note that any will made before your 16th birthday will be considered invalid. Therefore, careful planning is essential. However, exceptions may apply under Section 38 for members of the Canadian Armed Forces.
Why Section 36 Matters for Young People
Turning 16 under Section 36 allows young people to make important decisions regarding their estate. At this age, you can specify who will inherit your bank accounts, personal belongings, or digital assets, instead of relying on the default rules of the WESA.
However, reaching this age is just one aspect; the Wills, Estates and Succession Act (WESA) also requires you to comprehend the implications of your choices and to clearly express your intentions. By demonstrating both age and testamentary capacity, you can help ensure that your will is respected and protected from legal challenges.
Testamentary Capacity and the Banks Test
BC law relies on the common‑law Banks v Goodfellow test (1870) to determine whether a will‑maker is mentally capable. Under this test, the testator must:
Understand the nature and effect of making a will.
Appreciate the extent of their property.
Recognize potential beneficiaries and any moral claims on their estate.
Comprehend how they intend to distribute assets.
This means that if you are unsure whether you meet Section 36's capacity requirement, it’s a good idea to consult a wills lawyer to confirm your understanding and ensure your intentions are properly documented.
Next Steps for New Testators
Turning 16 is a big step and under Section 36 of WESA, it means you can now make a legal will in BC. Here’s a straightforward guide to help you get started with confidence:
1. Keep Your Documents Safe
Put your signed will somewhere secure, like a safe deposit box or locked drawer. Tell your executor where it is so they can find it later.
2. Share Copies (if you want)
It’s a good idea to share a copy of your will with your executor and the people named in it (your beneficiaries). This helps avoid confusion later on. Sharing doesn’t mean you can’t change your will later if you want to.
3. Choose the Right Executor
Pick someone responsible, usually a parent, older sibling, or close family friend who lives in BC. They’ll make sure your instructions are followed. It’s also smart to name an alternate in case your first choice can’t do it.
4. Power of Attorney
Appoint someone trustworthy to manage your money or health care if you can’t make decisions for yourself one day. Keep a copy of this document somewhere easy to access.
5. Write a Clear Will
Write your will carefully. Sign it at the end and have two adults (not beneficiaries) sign it at the same time, watching you sign. These steps make it legal.
6. Stay Organized
Keep a simple, updated list of your bank accounts, insurance policies, and debts. This helps your executor and family. Also, toss out old, outdated documents to avoid confusion.
7. Communicate with Family
Talk to your family or beneficiaries ahead of time about any specific gifts like your phone, laptop, or car so there are no surprises or arguments later.
8. Write Down Your Funeral Wishes
Even young people should write down if they want to be cremated, buried, or have a certain type of service. Give these notes to your executor.
9. Keep Your Finances Simple
Try to keep your bank accounts in one place so it’s easier for your executor to manage later. Let them know where your accounts are and consider having a financial advisor if your situation gets complicated.
10. Know the Basics
Executor: The person who carries out your will.
Beneficiaries: People who receive what you own.
Residue: What’s left after specific gifts.
Power of Attorney: Someone who helps if you can’t make decisions for yourself (but can’t change your will).
Why It Matters
Making a will doesn’t need to be stressful, it’s just about making sure people know what you want. These simple steps help protect your wishes and make things easier for your family.
If you’re unsure how to get started or want to make sure you’ve done it right, consider booking a consultation with Parr Business Law. We’re here to help.
Frequently Asked Questions
At what age can I make a valid will in BC?
You must be at least 16 and meet the Banks v Goodfellow capacity test.
Can a will signed before age 16 be upheld?
No. Section 36(2) renders any will signed before your 16th birthday invalid. Exceptions apply only to members of the Canadian Armed Forces under Section 38.
Do witnesses need to be adults?
Yes. WESA requires two independent adult witnesses who cannot be beneficiaries.
Can I create an electronic will?
Yes. Section 35.3 of WESA provides for electronic wills, but strict execution and witnessing rules apply.
Key Takeaways
Minimum Age: Testators must be 16 or older.
Capacity Requirement: Understanding the Bank's factors is essential.
Formalities: Writing, signing before two adult witnesses, and clear capacity are non‑negotiable.
Professional Guidance: Legal advice helps ensure validity and addresses complex issues.
Regular Updates: Revisit your will after significant life changes.
Need More Guidance?
Parr Business Law specializes in estate planning for young adults, parents and families. Whether you are approaching age 16 or seeking to update an existing will, our team will guide you through the legal requirements and document your capacity and intentions. Book a consultation today to secure your wishes and protect your loved ones.
