By Patrick McMurchy
Before the passage of the Wills, Estates and Succession Act, (WESA), in 2014, British Columbia was a “strict compliance” jurisdiction, for a will to be valid and effective, it had to comply strictly with execution and attestation formalities under the Wills Act and the same was true for revoking, altering or reviving a will.
While the same formalities still apply in order to create a valid will, s. 58 of WESA can be used to “cure” the invalidity of any record, document or writing or marking on a will or document and make effective as a will, codicil, revocation, alteration or revival of a previous will, if the court is satisfied the document is authentic and it represents the deceased’s testamentary intentions.
Under s. 58 there is no minimum of formality required. However, it does appear that at minimum, the record or document is one that can be read or is capable of being produced in a visible form.
The standard of proving the document is authentic and that it expresses the deceased’s testamentary intentions is a balance of probabilities.
I’ve reviewed all the reported cases considering s. 58 to date (October 29, 2018), and here is my brief analysis of the trend so far.
First, although s. 58 is only used when a document has not been formally properly executed, as a general rule, the further the document departs from the formal requirements, the more difficult it will be to cure it. This is not a question of form, but of substance: the formalities have been developed over time so that a court will have reliable evidence of the authenticity of the document and the deceased’s testamentary intention.
A number of cases are concerned with will-like documents that would otherwise be formally acceptable except the deceased did not sign the document, and/or the document was not properly witnessed, and/or it was not dated, the document was entitled Will or, Last Will and Testament, they were handwritten by the deceased or were pre-printed “do it yourself” wills filled in by the deceased, they were kept in a place where they would be easily found, and the bequests were rational in accordance with the deceased’s relationships with the named beneficiaries. In each case, there was no issue that the document was authentic, and the courts cured the defects and the documents were effective as wills.
On the other hand, there are cases where the deceased had a draft will drawn up by a professional, following instructions provided by the deceased, but after the document was fully drafted months passed and the deceased did not sign the drafts before they died. In these cases, the professional tried to arrange for the draft will to be formally executed but the deceased failed to follow those instructions. There was no evidence as to why the deceased had failed to sign the draft will. In those circumstances, the court found there was no evidence that the draft will represented the deliberate or fixed and final expression of the deceased’s intention.
In another case, after death, the executor found the deceased’s journal when cleaning the deceased’s apartment. The journal contained a detailed entry entitled “Last Will” that was signed and dated in 2014. The deceased had not disclosed the existence of the 2014 journal entry to anyone. After the date of the entry, she told friends she wished to make changes to her 2008 will and took some steps to meet with a lawyer to change her 2008 Will. The journal entry was inconsistent with the previous will for no clear reason. The court found that the contents of the journal were only notes the deceased had made to herself and was not an expression of her testamentary intention.
One case involved seven scraps of paper the deceased had written on, which if cured would revoke a previous will. One note, on which she wrote she wanted her son to have her home, was on the back of a receipt from Safeway. The effect of the seven notes was to disinherit one beneficiary entirely. The court weighed the facts that there were no witnesses who could support the notes, that the notes were made on scrap paper which did not suggest a fixed and final intention, there was no express revocation of the deceased’s previous will, no evidence of any rational basis for disinheriting the beneficiary and no evidence that the deceased ever turned her mind to how the wishes she expressed in the notes would affect her earlier testamentary dispositions. The court did not accept the scraps of paper as effective documents to alter the deceased’s previous will.
In another case, the deceased left behind two documents, prepared a few months apart.
The first document was accepted as being will-like and was cured, the second was not.
The first document employed language which conveyed an air of finality. It was generally consistent with other provisions in the deceased’s previous will. It was signed, which the court took as signalling knowledge and approval of the contents. Finally, it was left in a place so that it would be found after her death.
The second document was unsigned, and the language is in the form of a letter rather that a testamentary document. The court accepted the document as an expression of the deceased’s non-binding wishes related to some of her earlier dispositions but not having testamentary status.
In another case, a note handwritten by the deceased was included with the deceased’s will. At the bottom of the note the deceased had put the words, “This is the only Codicil (underlined in red ink) to my legal will…To be read out by My Lawyer..”
The note directed the executor to pay $10,000.00 to her dead grandson’s son and included a provision that set out how she wanted her daughter to use property that had been bequeathed to her in the will. The court accepted that the portion of the note referring to the gift of $10,000 was deliberate expression of the deceased’s testamentary intention. But the provision relating to the daughter was not given testamentary effect. The court held that the language in the note relating to gift of the property to her daughter was merely an expression of a wish as to how that property was to be used.
There is one final case to discuss involving a handwritten document. The document was simple: everything was to go to the deceased’s only sister. It was signed, dated and properly witnessed, meeting all the formal requirements of a valid will, and the court accepted as such. The deceased had no spouse and no surviving children. The problem was that one of the witnesses was the husband of the deceased’s sister.
Prior to 2014, the law was clear: the court had no discretion to allow for a will to make gifts to either a beneficiary who witnessed the will or the spouse of a beneficiary when that spouse was a witness to the execution of the will. This rule operated as a safeguard against fraud and undue influence. But in this case, the judge was satisfied that there was no undue influence or fraud and that the document and it represented the deceased’s testamentary intent. The judge used s. 58 to cure the witness issue and the gift to the sister of the deceased estate was not void.
In conclusion, the courts have accepted a wide range of evidence when considering s. 58 cases. The evidence includes the form of the document in question, whether the words “will” or “last will and testament” appear, whether the document is signed by the deceased, whether it’s dated, the language used in the document itself, whether the document purports to revoke a previous will, whether there are unexplained drastic departures from the provisions of a previous will, whether other people were told by the deceased of the existence of the document and whether the document was stored in a place where it was bound to be found.
There is no one factor that determines whether a court will accept a document as the expression of the testamentary intention of the deceased, and the category of factors to be considered remains open.
This short article is intended to give the reader a general understanding of some of the basic principles respecting the curative powers of the court under section 58 of the Wills Estates and Succession Act. It is not intended as legal advice. In estate litigation, outcomes very much depend on the specific facts of each case.