Can This Will be Remedied under S. 58 WESA to be Valid?

Can This Will be Remedied under S. 58 WESA to be Valid?

I had two enquiries today in which both questions posed were essentially – is this document, email, diary entry, hand written note, video deposition,  alterations to a previous will and so forth, a will that can be remedied under S. 58 WESA, so as to be valid?

An unsigned will was found to be valid under section 58 WESA as representing the deceased persons fixed and final testamentary intentions that varied an earlier will in the decision Skopyk Estate 2017 BCSC 2335.

The application to cure the will, under the provisions of section 58 of the Wills Estates and Succession act was unopposed, and the order was granted.

The deceased had made a prior 1995 will that was found to be validly varied by the subsequent unsigned will that was not dated, but was in handwriting reasonably similar to the handwriting in a letter entered into evidence, that was signed by the deceased. That letter was found in a drawer in the deceased’s apartment next to the 1995 will.

The unsigned and undated document referred to the will dated November 16, 1995 and purported to change the distribution of the residue of the estate.

Legal Principles

The court referred to S 37(1) of WESA that stated that in order for a will to be valid, it must be in writing, and signed at its end by the will maker, or the signature the end must be acknowledged by the will maker as his or hers, in the presence of two or more witnesses present at the same time, and signed by two or more witnesses in the presence of the will maker.

S 37(2) further provides that if the will does not comply with section 1, then it is invalid unless the court orders it to be effective as a will under section 58, known as the curing deficiency provision of WESA.

S. 58 WESA authorizes the court to order the document that is not comply with the requirements of section 37 be fully effective as though it had been made in compliance with those requirements.

To make such an order, the court must be satisfied that the document represents the testamentary intentions of the deceased.

The court followed the Court of Appeal decision in Re Hadley estate 2017 BCCA 311 that held that the document must be a deliberate or fixed and final expression of intention as to the disposal of property upon death.

Re-Lane estate 2015 BCSC 2162 held that extrinsic evidence of testamentary intent is admissible on the inquiry as to whether a noncompliant document and bodies a deceased intent. The extrinsic evidence of events might include events that occurred before, when and after the document was created.

The court found a number of relevant details that supported a finding that the unsigned and undated document represented such an expression of intention:

  • It was pinned to a bulletin board in the apartment of the deceased where it could easily be found
  • The distribution was rational and a previous beneficiary had died
  • The document directed a division of the residue in certain specific shares with language that mirrored the language of the 1995 will
  • Although it was not signed or witnessed the word witness was written near the bottom
  • Although the document was not dated there was a reference at the top of the deceased will dated November 16, 1995, and it also corrected a typographical error in the 1995 will
  • The handwriting was reasonably similar to handwriting in a letter entered into evidence
    the day before heart surgery the deceased said that he had been working on his will, and that his wishes were different from that of the 1995 will

S. 58 WESA: 2 of 3 Notes Admitted as Will

S. 58 WESA: 2 of 3 Notes Admitted as Will

In Bizicki Estate 2019 BCSC 2142 the court pursuant to section 58 WESA, the court admitted two of three notes into probate as the last will of the deceased.

The documents stated the deceased’s wish that his girlfriend receive the money in his bank accounts and other personal property, so as to constitute his deliberate or fixed and final intention as to the disposition of the remaining money in his bank accounts, following payment of funeral expenses and debts.

The application by his long time girlfriend was opposed by the deceased’s next of kin.

The deceased was a long time tenant of a room at a Seymour St. hotel in Vancouver, a bachelor and had no children.

He was unsophisticated and his long time girlfriend, the applicant could not read or write English.

She found three original notes on separate pieces of paper, with only one of them being dated, November 23, 2009.

One of the notes in particular, which the judge called the “money note”, directed that his monies be applied to pay off debts, and that monies left over are to be awarded to his girlfriend. He stated where his bank account was.

In that account he had approximately $272,000.

The court found that each of the notes was written in contemplation of death and addressed what will be done with his property when he is dead.

The court put importance on the fact that the deceased never previously made a will executed with the proper requirements of S 37 WESA.

There was no dispute that the handwriting on the three documents was that of the deceased, and this was also established their expert evidence.

The court followed the application of section 58, as set out in two decisions, namely Estate of Young 2015 BCSC 182 and Hadley Estate 2017 BC CA 311.

In Young estate the court stated:

“The burden of proof that a noncompliant document embodies the deceased testamentary intentions is a balance of probabilities. A wide range of factors may be relevant to establishing their existence in the particular case. Although context specific, these factors may include the presence of the deceased signature, the deceased’s handwriting, witness signatures, revocation of previous wills, funeral arrangements, specific bequests, and the title of the document.

While imperfect, or even noncompliance with formal testamentary requirements may be overcome by application of a sufficiently broad curative provision, the further a document departs from the formal requirements, the harder it may be for the court to find it embodies the deceased testamentary intention.”

S.58 WESA: Computer Message Found to be Valid Will

S.58 WESA: Computer Message Found to be Valid Will

In re Hubschi Estate 2019 BCSC 2040 found a message on the deceased’s computer that the court “cured” and found to be a valid will.

Specifically, the court found that the electronic Microsoft Word document found in the deceased password – protected personal computer after his death, is the last will of Mr.Hubschi.

The case did not appear to be opposed but the Judge thoroughly reviewed the law under S.58 WESA.

The computer message will is stated as follows:

“ Get a will made out at some point.A5-way assets split for remaining brother and sisters. Greg, Annette or Trevor as executor.”

As the document was cured by the court, the deceased’s assets were to be distributed to the foster siblings who he grew up with in accordance with the intention set out in the document.

Had the document not been cured, he would have died intestate, and his assets would have been distributed in accordance with  S.23 WESA to blood relatives in Switzerland with whom he had no relationship.

The deceased was given up at birth and at age 3, placed in a foster home in which he grew up with the five siblings whom the court divided his estate equally.

He died without any children, nor did he marry.

The Law

Section 58 of WESA allows the court to make an order that a “record, document or writing or marking on a will or document” represents the testamentary intentions of the deceased person, even though the making of the will does not comply with WESA.

The court may, as the circumstances require, order that a record or document or writing or marking on a will to be fully effective as though it had been made as part of the deceased will.

The court needs to be satisfied on the balance of probabilities that the record represents the full and final testamentary intentions of the deceased and can be saved by section 58. WESA.

The court extensively quoted the Court of Appeal decision In re Hadley Estate 2017 BCCA 311 .

Under section 58 WESA there is no minimum level of execution or other formality for a testamentary document to be found fully effective ( Hadley estate at paragraph 35). If the court grants an order under section 58(3) a document may be admitted to probate, regardless of its form.

The party seeking an order under section 58(3) must demonstrate on the balance of probabilities, that:

1) The testamentary document is authentic;
2) the testamentary document contains the full, final and fixed intention of the will maker

The case law has established that the testamentary intention means much more than the expression of how a person would like his or her property to be disposed of after death.

The key question is whether the document records a deliberate or fixed and final expression of intention as to the disposal of the deceased property on death. A deliberate or fixed and final intention is not the equivalent of an irrevocable intention, given that a will, by its nature is revocable until the death of its maker. Rather, the intention must be fixed and final at the material time, which will vary depending on the circumstances.

A very wide range of factors may be relevant to establishing their existence in a particular case.

Although context specific, these factors may include the presence of such matters as the deceased’s signature, the deceased’s handwriting, witness signatures, revocation of previous wills, funeral arrangements, specific bequests, and the title of the document.

In re Bailey estate 2016 BCSC 1226 and unsigned draft will was found not to represent the deceased fixed and final testamentary intentions.

The draft had been drawn up by her lawyer based on her instructions, but there had been several back-and-forth drafts leading up to that draft. Despite several reminders from the lawyer the deceased never confirmed nor signed the will. The court accepted evidence that the deceased had said she needed to set up an appointment “to complete “the draft will.

The court said that that statement taken at its best, indicates she wanted to replace her 2008 will with the new will, and that the statement could have meant she had changes to make, but that she intended on signing the draft as it stood. The deceased had also not revoked her previous will.

The court concluded the draft will was not the deceased fixed and final testamentary intention, and the application under section 58(3) was denied.

Unsent Text Message Valid Will In Australia

Unsent Text Message Valid Will In Australia

A court in Australia in Nichol v Nichol (2017) QSC 220 determined that a non-sent text message on a mobile phone from the deceased Mark Nichol, leaving everything to his brother and nephew was valid as his last will. The will, excluded Mark’s wife and estranged son.

The phone was found near his body after he committed suicide with the unsent message on his phone reading:

“Dave Nic and Jack keep all that I have house and superannuation, put my ashes in the back garden with Trish Julie will take her stuff only she’s okay gone back to her ex AGAIN , I’m beaten. A bit of cash behind the TV and a bit in the bank cash card pin (_)
MRN 1901162Q

My Will”

The evidence accepted by the court concluded that the name Dave Nic was an abbreviation for his brother’s name and that Jack was his nephew. Trish was Mark’s deceased first wife and Julie one of the parties to the court action was Mark’s wife . The initials and numbers were Mark’s initials and date of birth.

This decision under somewhat similar legislation in Australia that allows defective wills to be ”cured” may well be followed and applied in British Columbia if the necessary requirements of sections 58 and 59 WESA are met.

The application to prove the unsent draft text message as a valid will was opposed by the deceased wife, but the court found that the unsent text message, ending with the words “my will” showed that the man intended it to act as his will.

Expert evidence was presented following a forensic examination of the deceased’s mobile phone and the report confirmed:

1) the text message had not been sent;
2) that its content indicated that it was created on October 10, 2016;
3) that the unsent text message was likely to be saved by someone pressing the back arrow in the message editing views;
4) when the draft message is open for editing, a paperclip symbol is visible, which when pressed, enables the attachment of a picture or other to the message.
5) The report confirmed that there was no other document on the mobile phone that might be relevant to the deceased’s testamentary intention in the days immediately prior to and including October 10, 2016

The Australian court followed a decision Lindsay v . McGrath (2016) 2 Qd R 160 at 55 , a decision of the Queensland Court of Appeal that adopted three conditions for the execution requirements of the will to be dispensed with, namely:

1) Was there a document;

2) did that document purport to embody the testamentary intentions of the relevant deceased;

3) did the evidence satisfy the court that, either, at the time of the subject document being brought into being, or at some later time, the relevant deceased, by some act or words, demonstrated that it was his or her then intention that the subject document should, without more on her or his part operate as his or her will?

The court enumerated several facts that the court found stated the deceased testamentary intentions:

1) The text message says at the bottom that was “my will “

2) the message identifies the house and superannuation which are his principal assets, about which he also says” keep all that I have”

3) he refers to “Julie will take her stuff only she’s okay gone back to her ex AGAIN, I’m beaten “

4) he identifies that he has cash in the bank and provides the pin number

5) he identified where he wanted his ashes placed

The court held that the informal nature of the text did not exclude from being sufficient to represent the deceased’s testamentary intentions. The court referred to another decision in Australia where the deceased had written “my will” on a DVD, had discussed his intentions to suicide of the DVD and then was at pains to define what property he owned. Although very informal, the court accepted that the document purported to dispose of that property after his death, and made a declaration under the Australian legislation section 18 of the Succession act ( Mellino v WIlkins (2013) QSC 74.

The court further held that the suicide of the proposed testator does not raise a presumption against testamentary capacity Re Estate of Hodges (1988) 14 NSWLR 698 at 707 and Melino v Wilkins (2013) QS

Unsigned and Undated Will Valid (S.58 WESA)

Unsigned and Undated Will Valid (S.58 WESA)

An unsigned will was found to be valid under section 58 WESA as representing the deceased persons fixed and final testamentary intentions that varied an earlier will in the decision Skopyk Estate 2017 BCSC 2335.

The application to cure the will, under the provisions of section 58 of the Wills Estates and Succession act was unopposed, and the order was granted.

The deceased had made a prior 1995 will that was found to be validly varied by the subsequent unsigned will that was not dated, but was in handwriting reasonably similar to the handwriting in a letter entered into evidence, that was signed by the deceased. That letter was found in a drawer in the deceased’s apartment next to the 1995 will.

The unsigned and undated document referred to the will dated November 16, 1995 and purported to change the distribution of the residue of the estate.

Legal Principles

The court referred to S 37(1) of WESA that stated that in order for a will to be valid, it must be in writing, and signed at its end by the will maker, or the signature the end must be acknowledged by the will maker as his or hers, in the presence of two or more witnesses present at the same time, and signed by two or more witnesses in the presence of the will maker.

S 37(2) further provides that if the will does not comply with section 1, then it is invalid unless the court orders it to be effective as a will under section 58, known as the curing deficiency provision of WESA.

S. 58 WESA authorizes the court to order the document that is not comply with the requirements of section 37 be fully effective as though it had been made in compliance with those requirements.
To make such an order, the court must be satisfied that the document represents the testamentary intentions of the deceased.

The court followed the Court of Appeal decision in Re Hadley estate 2017 BCCA 311 that held that the document must be a deliberate or fixed and final expression of intention as to the disposal of property upon death.

Re-Lane estate 2015 BCSC 2162 held that extrinsic evidence of testamentary intent is admissible on the inquiry as to whether a noncompliant document and bodies a deceased intent. The extrinsic evidence of events might include events that occurred before, when and after the document was created.
The court found a number of relevant details that supported a finding that the unsigned and undated document represented such an expression of intention:

  • It was pinned to a bulletin board in the apartment of the deceased where it could easily be found
  • the distribution was rational and a previous beneficiary had died
  • the document directed a division of the residue in certain specific shares with language that mirrored the language of the 1995 will
  • although it was not signed or witnessed the word witness was written near the bottom
  • although the document was not dated there was a reference at the top of the deceased will dated November 16, 1995, and it also corrected a typographical error in the 1995 will
  • the handwriting was reasonably similar to handwriting in a letter entered into evidence
  • the day before heart surgery the deceased said that he had been working on his will, and that his wishes were different from that of the 1995 will