Defective Will “Cured” S. 58 WESA

Defective Will "Cured" S. 58 WESA

S. 58 of WESA (Wills, Succession and Estates act) once again came to play to cure an otherwise  defective will in Re Smith Estate 2016 BCSC 350.

Once again the leading case in BC to date of re Young estate 2015 BCSC 182 was followed.

The facts:

The deceased and her husband lived together in a common law relationship for about 35 years until they married in 2012 .

The  applicant was the deceased’s granddaughter who as a child was very close to the deceased and lived with her for period of time.

The applicant remained very involved with the deceased as an adult.

The deceased advised that she had  drafted three documents and signed them having  asked the applicant if she would be the executor of her will and she agreed.

After the death of the deceased, the applicant searched for any testamentary documents in all places she thought they might reasonably be found including  funeral box .

The applicant found a clipped and stapled together copy of a 2008 document, an original 2011 document, and an original “funeral arrangements” document. ( three in total)

The  applicant brought applications for determinations that two handwritten records represented the  testamentary intentions of deceased, and were fully effective as though they had been made as or part of her will; and for orders and declarations setting out results of these determinations as well as orders dispensing with service of notice of application on particular beneficiaries, and her special costs .

The Court granted the orders.

The law:

17      Turning to the applicable law, WESA came into force on March 31, 2014. Among other things, section 58 permits the court to allow a document to be fully effective as though it had been made as a will, where the court determines the document represents a deceased’s testamentary intentions. Before WESA, documents that failed to strictly comply with the formal requirements of the Wills Act, R.S.B.C. 1996, c. 489 regarding the making, signing, and witnessing of a will were invalid.

18      Section 58 was first considered in Young Estate, Re, 2015 BCSC 182 (B.C. S.C.). Madam Justice Dickson observed the provision is curative, providing the court with a discretion in prescribed circumstances to relieve against the consequences of non-compliance with testamentary formalities. It cannot however be used to uphold a will that is invalid for substantial reasons such as testamentary incapacity or undue influence. Her decision relied upon the principles set out in George v. Daily (1997), 143 D.L.R. (4th) 273 (Man. C.A.) which dealt with similar provisions in the Manitoba Wills Act.

19      At paragraph 35, Dickson J. described the approach to an application under s. 58 of WESA as follows:

… (t) he key question is whether the document records a deliberate or fixed and final expression of intention as to the disposal of the deceased’s 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.

20      She concluded the factors relevant to determining whether a document embodies the deceased’s testamentary intention are context-specific and may include the presence of the deceased’s signature, the deceased’s handwriting, witness signatures, revocation of previous wills, funeral arrangements, specific bequests, and the title of the document.

Discussion and analysis:

21      During the hearing the applicant quite properly raised an issue about the validity of the gift to her set out in the 2011 document suggesting it may be construed as creating an unenforceable gift-over. I agree entirely with her further submission, however, that it is not the role of the court on an application pursuant to s. 58 to determine the validity of the instrument per se including the validity of the gifts it sets out. To the extent this approach may have been taken in Beck Estate, Re, 2015 BCSC 676 (B.C. S.C.), I decline, respectfully, to follow that decision.

22      Turning to the application of s. 58 to the facts of this case, the applicant recognizes the handwriting in the documents as that of the deceased. In any event, it is clear to me the handwriting matches known samples of her handwriting. Accordingly, I find the documents are authentic.

23      In this case, the factors relevant to determining whether each of the documents records a deliberate or fixed and final expression of the deceased’s intention regarding disposal of her property on death include:

  • The presence of her signature indicating her approval of the content of each document.
  • The titles she gave to each of the documents.
  • The content of the documents:

The first sets out and distributes a long list of clearly identified personal items to many specific beneficiaries on the event of her death and,

The second, includes a specific distribution of her real property, again, on the event of her death.

  • Both documents are expressed in language that conveys an air of finality.
  • The deceased met with Mr. Smith to discuss her will and presented him with both of these documents along with a third regarding funeral arrangements. She advised him she had drafted them herself and signed the first two. Her husband was also present for that meeting.
  • She subsequently met with the applicant and expressly asked her if she would agree to be her executor which she did. She advised the applicant that all of the necessary documents would be found in a funeral box she had prepared.
  • After the death of the deceased, the applicant then found a copy of the 2008 document, the original 2011 document and the funeral arrangements document in that funeral box. No other documents setting out a testamentary intention were ever located despite a diligent search.

24      After weighing all of these factors, I find on the balance of probabilities that the 2008 and 2011 documents represent the deliberate and final expressions of the deceased’s testamentary intentions. I therefore grant the orders sought by the applicant.

25      Pursuant to Rule 25-14(8)(i), I grant a further order dispensing with the requirement to serve the beneficiaries of the gifts set out in the 2008 document with notice of the application. I am satisfied that most of these gifts have already been distributed. As described in the document, they appear to involve personal items with little monetary value, and the beneficiaries would not have an entitlement upon an intestacy.

26      The applicant shall have special costs.

WESA Will Framework

WESA Will Framework

The statutory framework of WESA (Estates, Succession and Wills act) was set out in British Columbia v Sheaffer 2015 BCSC 1306 where the court held that an improperly executed will  prior to the enactment of WESA on March 31, 2014 could not be rectified by the “curative” provisions of S 58 WESA, and that only wills done after that date may qualify.

See previous blogs  for more information on the curative provisions of S 58 WESA where for example an unwitnessed  suicide note and  a collection of unwitnessed but signed letters in an envelope were found to be valid wills under s 58 WESA.

Facts:

The deceased died leaving no surviving spouse or children and in his last will signed in 1974  he bequeathed the residue of his estate to his spouse (who predeceased him in 1993), with gift over to her son ( the beneficiary).

The  Public Guardian and Trustee (PGT) asserted the 1974 will was the last subsisting last will and testament of deceased .

The Defendants, who were friends of deceased, asserted an unsigned document dated September 2011 should stand as deceased’s last will and testament.

The PGT brought application for an order to cancel all caveats filed by defendant in connection with deceased’s estate and that she be granted letters of administration with 1974 will annexed .

Decision:

The Court held  the PGT could apply for letters of administration with 1974 will annexed as the unsigned will was not a valid testamentary disposition.

The unsigned will did not comply with formal execution requirements of Wills Act in force at material time prior to WESA’s introduction on March 31,2014.

Since the  Wills, Estates and Succession Act (“WESA“) was not applicable, the court had no discretion to overlook failure to strictly comply with statutorily prescribed execution requirements .

Deceased died prior to statutorily-prescribed qualifying date imposed by s. 186 of WESA and accordingly the  1974 will constituted the subsisting last will and testament of deceased and the defendant was not a beneficiary of deceased’s estate.

Law:

Statutory Framework

22. On March 31, 2014, the WESA came into force in British Columbia. Its enactment heralded significant changes in the law with respect to of wills and estate administration in this province.

23. For the most part, the WESA applies to the estates of persons who have died on or after March 31, 2014, and to the wills of such persons, even though their wills may have been made prior to March 31, 2014. The effect of the transitional provisions is that s. 58 of the WESA is only engaged if the date of death of the will-maker is after March 31, 2014. While there are narrow exceptions to the date of the will-maker’s death as being the qualifying event for the application of the WESA, they do not apply to the case at hand.

24. Prior to the enactment of the WESA, long-standing principles of formalism governed the creation, alteration, and revocation of wills in British Columbia. These principles were codified in the Wills Act. The pertinent legislative provisions prescribing the requisite statutory formalities for due execution, are set out in s. 4 of the former Wills Act:

4 Subject to section 5, a will is not valid unless:

(a) at its end it is signed by the testator or signed in the testator’s name by some other person in the testator’s presence and by the testator’s direction,

(b) the testator makes or acknowledges the signature in the presence of 2 or more attesting witnesses present at the same time, and

(c) 2 or more of the attesting witnesses subscribe the will in the presence of the testator.

25. It was well-settled in British Columbia, prior to the enactment of the WESA, that it was necessary to strictly comply with the statutorily prescribed formalities for creating a will. The courts have no discretion in waiving those requirements. In Ellis v. Turner (1997), 43 B.C.L.R. (3d) 283 (B.C. C.A.), the Court of Appeal commented on these strict compliance provisions, at 285:

The Wills Act creates a scheme designed to insure that a document purporting to be a testamentary disposition is in fact the will of the testator. A strong indicia of authenticity is proof that the will was signed at its end in the presence of witnesses. This Court must interpret, apply and respect the law as passed by the legislature. To declare the will in this case to be valid would be to by-pass the clear provisions of the Wills Act and to create a discretion in this Court which is not found in the Act. This is something which we cannot do.

26. The formalities for execution have been incorporated into s. 37 of the WESA. However, the WESA has introduced a remedial provision in s. 58 that gives the court a broad authority to “cure” a purported will, an alteration to a will, or the revocation of a will that does not satisfy the signing and witnessing requirements prescribed by s. 37. Section 58 constitutes a key component of the modernization of the law of wills and succession in British Columbia because it empowers the court to uphold the will-maker’s true intentions even where the will, a gift under the will, or a purported alteration or revocation of the will is invalid pursuant to other provisions of the WESA.

27. The application of s. 58 extends to “a record, document or writing or marking on a will or document”. The pertinent provisions of the WESA provide as follows:

58 (1) In this section, “record” includes data that

(a) is recorded or stored electronically,

(b) can be read by a person, and

(c) is capable of reproduction in a visible form.

(2) On application, the court may make an order under subsection (3) if the court determines that a record, document or writing or marking on a will or document represents

(a) the testamentary intentions of a deceased person,

(b) the intention of a deceased person to revoke, alter or revive a will or testamentary disposition of the deceased person, or

(c) the intention of a deceased person to revoke, alter or revive a testamentary disposition contained in a document other than a will.

(3) Even though the making, revocation, alteration or revival of a will does not comply with this Act, the court may, as the circumstances require, order that a record or document or writing or marking on a will or document be fully effective as though it had been made

(a) as the will or part of the will of the deceased person,

(b) as a revocation, alteration or revival of a will of the deceased person, or

(c) as the testamentary intention of the deceased person.

(4) If an alteration to a will makes a word or provision illegible and the court is satisfied that the alteration was not made in accordance with this Act, the court may reinstate the original word or provision if there is evidence to establish what the original word or provision was.

186 (1) Subject to subsections (2) and (3) of this section and section 189, Part 4 [Wills] applies to a will, whenever executed, if the will-maker dies on or after the date on which Part 4 comes into force.

(2) Subsection (1) does not invalidate a will validly made before the date on which Part 4 comes into force.

(3) Subsection (1) does not revive a will validly revoked before the date on which Part 4 comes into force.

S. 151 WESA: Beneficiary Can Sue on Behalf of Estate

S. 151 WESA: Beneficiary Can Sue on Behalf of Estate

Werner v McLean Estate is one of the first decisions under WESA to allow an intestate successor beneficiary to commence a court action in the name and on behalf of the personal representative of the estate if certain preconditions (i.e., reasonable efforts, notice, and good faith) are met. This is a new provision to WESA.

The Court utilzed S. 151 to allow the intestate successor to commence action when the acrimony was such between the parties that it met the criteria to allow the court to conclude that it was necessary or expedient for the protection of the estate or the interests of a beneficiary or an intestate successor for the proceedings to be brought or defended.

This section as a practical matter will likely be used when a personal representative refuses to carry out his or her duty to as viewed by the beneficiaries or intestate successors.

The application alternatively sought to remove and replace the trustee.

The court in addition to granting the relief un S. 151 WESA also ordered that the estate assets not be disposed or  transferred pending resolution of the case.

The Law

[13] Section 151 of the Wills, Estates and Succession Act provides, in relevant part, as follows:

(1) Despite section 136 [effect of representation grant], a beneficiary or an intestate successor may, with leave of the court, commence proceedings in the name and on behalf of the personal representative of the deceased person

(a) to recover property or to enforce a right, duty or obligation owed to the deceased person that could be recovered or enforced by the personal representative, or

(b) to obtain damages for breach of a right, duty or obligation owed to the deceased person.

(3) The court may grant leave under this section if

(a) the court determines the beneficiary or intestate successor seeking leave

(i) representative to commence or defend the proceeding, has made reasonable efforts to cause the personal

(ii) has given notice of the application for leave to

(A) the personal representative,

(B) any other beneficiaries or intestate successors, and

(C) any additional person the court directs that notice is to be given, and

(iii) is acting in good faith, and

(a) it appears to the court that it is necessary or expedient for the protection of the estate or the interests of a beneficiary or an intestate successor for the proceeding to be brought or defended.

(3) On application by a beneficiary, an intestate successor or a personal representative, the court may authorize a person to control the conduct of a proceeding under this section or may give other directions for the conduct of the proceeding.

Accordingly, the court is empowered to grant leave to  an intestate successor to commence proceedings in the name and on behalf of the personal representative if certain preconditions (i.e., reasonable efforts, notice, and good faith) are met.

Will Witnesses No Longer Required

Will Witness No Longer Required

For my first 40 years of practice, and for time immemorial before , there were strict requirements for the execution of a will – a failure thereof could result in an invalid or partially invalid will.

That all changed under sections 58 and 59 of WESA, known as the “curative provisions” or the “ dispensation powers”.

Many recent decisions have allowed what would have been previously invalid wills to be admitted into probate as valid , despite the lack of any witnesses to the will, provided the court is satisfied it is the will makers signature and firm intention as to the disposal of his/her property after death. ( This is to be distinguished from other Province’s holographic wills which must be “ wholly written and signed by the will maker so typed and drug stores do not apply there but do in BC under WESA).

One of the interesting by products of the liberalization of the requirements for will execution is that many more people will do their own wills to save money and this will result in more estate litigation for various later discussed reasons.

The Law

The BC Courts have followed the reasoning of a Manitoba Court of Appeal case George v. Daily (1997) 143 DLR (4th) 273 which discussed at length the limits placed on a courts “curative powers” and held there must be a deliberate or fixed and final expression of intention as to the disposal of his/her property on death.

The chambers judge who had held that a letter written by the deceased’s accountant to the deceased’s solicitor containing proposed revisions to the deceased’s will should be admitted to probate was reversed. The accountant had prepared the letter after receiving instructions from the deceased to change his will to leave most of his estate to various charities rather than to his children. When the deceased later met with his solicitor and confirmed the alterations to the will contained in his accountant’s letter, the solicitor requested the deceased obtain a certificate from his doctor confirming that he had the capacity to execute the will. The deceased died two months later without having obtained the medical certificate. The solicitor had not spoken with the deceased in the interim, nor had he prepared a new will.

In George, the Court stated the following principles:

It is well established that imperfect compliance, even non-compliance, with the formal requirements of The Wills Act may be excused. However, it must be established that the document being propounded was intended by the deceased to have testamentary effect. The court must therefore be satisfied on a balance of probabilities that the writing embodies the testamentary intent of the testator or testatrix

(a) The standard of proof on an application under the curative provision is proof on a balance of probabilities (para. 20).

(b) The greater the departure from the requirements of formal validity, the harder it may be for the court to be satisfied that the document represents the deceased’s testamentary intention (para. 19).

(c) The requirements for formal validity of a will serve several purposes or functions, including:

  1. an evidentiary function by providing the court with reliable and permanent evidence of testamentary intention and the terms of the will; and
  2. a cautionary function by impressing upon the testator the solemnity, finality, and importance of his actions in making his “last will and testament” (at paras. 21-26).

(d) The evidentiary and cautionary functions are particularly relevant to the determination of whether or not a writing or document embodies the testamentary intentions of a deceased (para. 22).

(e) Not every expression made by a person, whether orally in writing, concerning the disposition of his or her property on death embodies his or her testamentary intentions (para. 62).

(f) The court held at para. 65:

The term “testamentary intention” means much more than a person’s expression of how he would like his/her property to be disposed of after death. The essential quality of the term is that there must be a deliberate or fixed and final expression of intention as to the disposal of his/her property on death: Bennett; Molinary v. Winfrey (1960), [1961] S.C.R. 91; and Canada Permanent Trust Co. v. Bowman, [1962] S.C.R. 711.

The leading case on the curative powers of section 58 and 59 WESA in B.C. are those of Madam Justice Dickson ( since elevated to the Appeal Court) in Re Young Estate 2015 BCSC 182 which largely follows George v. Daily:

… The key question is whether the document records a deliberate or fixed and final expression of intention as to the disposal of the deceased’s 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.

Other Cases

In Beck Estate (Re), 2015 BCSC 676, Master Young (as she then was) considered a handwritten document in letter form, which the deceased dated and signed. The court found that the words “Codicil to my Last Will” and instructions that the document was to be read out by her lawyer suggested a deliberate or fixed and final expression of intention regarding the disposal of the deceased’s property upon her death. The deceased had also given the document to her executor for safekeeping one week before her death, and had told him that she thought the unwitnessed Codicil was valid.

Re Lane 2015 BCSC 2162 held that none of  seven handwritten notes made between April 14, 2012 and January 9, 2015 represented the intention of the deceased to alter her Last Will and Testament dated July 12, 1994 and could not be cured under s 58 of WESA, the “curative provisions”.

The case is helpful in determining the boundaries of the curative provision of s 568 in that the judge sets out the various reasons why the scrap notes could e testamentary and then the reason why they may not be testamentary, and concludes the latter.

In an uncontested application Re the Estate of David Woolrich, deceased Vancouver Registry V140043 ( unreported dated January 21,2015, ), a short 4 page hand printed suicide note of the deceased was approved as his last will and testament under the curative powers of S 58 WESA and George v. Daily was followed.

Affidavit materials filed made it clear that it was the deceased who wrote the note and that it was his final testamentary intention.

Homemade wills lead to litigation

The public is reluctant to pay a lawyer’s hourly rate to prepare what they invariably regard is a “simple” will. (Every lawyer  should know there is no such thing as a simple will)

Many lawyers have historically been prepared to prepare wills as a loss leader , but with increased overheads and consumer  sensitivity to price,  there is friction in the area of preparation of wills, powers of attorney, representation agreements and other estate planning documents  that, when combined with the information available on the Internet , will cause many in the public to cost  save by preparing their own wills and other estate documents .

As the public becomes more aware of the curative provisions of WESA, they will become increasingly encouraged  to prepare their own wills.

Most law firms that are economically viable in wills and estates now charge their hourly rate which  is often much higher than the client is prepared to pay.

The Curative provisions  of WESA were well-intentioned and generally are reasonable once the court is satisfied that the documents reflect the intentions of the deceased .

The problem essentially is that the legal test for mental capacity is a legal test, not medical, and the removal of the  lawyer  from the preparation of the will process  is simply an unintended  consequence  that will ultimately lead to more contested “homemade” wills  litigation, particularly in issues related to mental capacity, undue influence and wills interpretation .

Wills Made In Another Country Easier to Prove Under WESA

Foreign Wills

Wills validly made in foreign countries will be easier to prove under WESA S.80

The criteria are reasonable and not onerous to meet.

Validity of wills made in accordance with other laws

80  (1) A will is valid as to the formal requirements for making the will and is admissible to probate if it is made in accordance

  • with the law of the place where the will is made,
  • with the law of the will-maker’s domicile, either at the date the will is made or at the date of the will-maker’s death,
  • with the law of the will-maker’s ordinary residence, either at the date the will is made or at the date of the will-maker’s death,
  • with the law of a country of which the will-maker was a citizen, either at the date the will is made or at the date of the will-maker’s death,
  • with the law of British Columbia, but the will is made outside British Columbia,
  • with the law of the place where the will-maker’s property is situated at the date the will is made or at the date of the will-maker’s death,

(g)  in the case of a will made on board a vessel or aircraft of any description, with the law of the place with which, having regard to the registration, if any, of a vessel or aircraft, the vessel or aircraft is most closely connected, or

(h) to the extent that the will exercises a power of appointment, with the law governing the essential validity of that power.

(2) If a will is not valid under subsection (1), it is deemed to be valid if a subsequent amendment to the law of the relevant jurisdiction before the deceased person’s death would have validated the will.

 

(3) The formal validity of a will that revokes

  1. a will that would be treated as formally valid under this Division, or
  2. a provision of a will that would be treated under this Division as a formally valid provision,may be determined by reference to any law under which the revoked will or provision of the will would be treated as formally valid and that is relevant for that purpose under this division.

s.81 Resort to other aids to construction  In the construction of a will to which this Division applies, the court may resort to the law of the place where the will-maker was domiciled or was ordinarily resident at the time the will was made.may be determined by reference to any law under which the revoked will or provision of the will would be treated as formally valid and that is relevant for that purpose under this Division.

Marriage No Longer Revokes a Will Under WESA

Marriage no longer revokes will under wesaRevocation of a Will before Part 4 of the WESA came  into force on April 1.14, is not revived by virtue of Part 4 coming into force (s. 186(3)).

This exception is of particular importance if the will-maker marries after making a will.

As the automatic revocation of a will by subsequent marriage of the will-maker is abolished under the WESA (s. 55(1)), the way in which the exception operates depends on the sequence in which the execution of the will, the marriage, the effective date of Part 4 of the WESA, and the date of death occur.

If a will is revoked because of the marriage of the will-maker before Part 4 is brought into force, the clear meaning of s. 186(3) is that its entry into force does not revive the will.

For a detailed overview of the law relating to the revocation of a will , please visit my blog dated November 19,2014.

There is a blog on the presumption that a lost will is revoked on the November 3, 2011 blog

and a further article on revocation of wills on March 12, 2014.

Removal of Executor By Citation- S. 25 WESA

S. 25 WESA provides for the removal of an executor where a Citation

 

One of the most common complaints of estate litigants is the role, choice or behavior of the executor chosen by the deceased.

The Courts are reluctant to remove an executor without valid reasons. For further in depth discussion of removal of executors, trustees ( personal representatives), please also visit blog entries on this site dated :

April 12, 2011: Court Removes One Co-Executor in Deadlock Between Two

November 8, 2011: Co-Executor/Trustee Removed for Lack of Cooperation with Other Executor/Trustee

May 29, 2011: Executor Appointed Amicus (Friend) of Court to Defend Wills Variation Claim

October 10, 2013: The Five Criteria for Removal of a Trustee

November 2, 2013: Removal of an Executor – Trustee

February 4, 2014: Trustee Removed for Selling Assets Below Market Value and Benefitting

 

S 25 WESA allows for the removal of an executor or trustee where the Citation served on the executor is ignored or not complied with.

Under 25-11(2) the citation must also be personally served on each alternate executor in the event that the first executor fails to comply with the 14 day rule, or file an Answer.

Under Section 25-11 (5) , a person cited is deemed to have renounced executorship if:

a) the person cited refuses to comply with providing the information or filing an Answer under 25-11 (4), is deemed to have renounced executorship.

2) or obtain a grant of probate within 6 months of the date the citation was served

5-11 (6) deals with the effect of failing to answer a Citation or refusing probate:

1) if the person fails to apply for probate , provide an Answer or fails to provide the information, he or she is deemed to have renounced the executorship.

In that event, the citor or another person interested in the estate may apply for:

1) a grant of probate or administration with will annexed;

2) an order under S 58 curing deficiencies in the testamentary document;

3) that the testamentary document be proved in solemn form;

4) if the testamentary document is in the possession of a third party, the issuance of a subpoena under Rule 25-12 to require the cited person to file the testamentary document

 

 

Vancouver Sun Quotes Trevor Todd re WESA

Trevor ToddIan Mulgrew: WESA, new wills and estates law brings sweeping change to B.C. Aims to provide greater certainty and simplify process for those distributing an estate

The Wills, Estates and Succession Act (WESA) passed by the B.C. legislature on Sept. 24, 2009 finally comes into force in the New Year and it’s a sweeping change.

After March 31, the new law brings together and updates various statutes with the twin aims of providing greater certainty for individuals who leave a will and simplifying the process for those responsible for distributing an estate.

Among its benefits, the government says the act clarifies the process of inheritance when a person dies without leaving a will; makes the process easier for a spouse to transfer the jointly held title of the family home when a partner dies; clearly outlines the sequence in which to look for heirs; provides the courts with more latitude to ensure the last wishes of the dead are respected; clarifies obligations relating to property inheritance in the context of Nisga’a and Treaty First Nation lands; and lowers the minimum age at which a person can make a will from 19 to 16 years old.

New probate rules also come into effect with the act, which was the product years ago of a long public process that included the participation of the Supreme Court and the B.C. Law Institute.

The hope is these rules will ensure consistency for probate applicants and streamline court processes to provide more timely service.

Still, there are nervous nellies.

A recent meeting to explain the changes to some 300 lawyers produced as much anxiety as it eased: Solicitors wrung their hands with concern; litigators rubbed theirs at the prospect of more, not fewer lawsuits as a result of the changes.

Section 58, for instance, introduces a radically significant idea about what can be considered a will, saying: “the court may, as the circumstances require, order that a record or document, or writing or marking on a will or document be fully effective as though it had been made a) as the will or part of the will of the deceased person, b) as a revocation, alteration or revival of the will of the deceased person, or c) as the testamentary intention of the deceased person.”

Vancouver lawyer Trevor Todd, who runs disinherited.com and participated in the development of the law, says this could create awkward situations.

“Until WESA comes into force,” Todd said, “the court has little power to cure a failure to comply with technical requirements in executing a will. WESA allows the court to look to another ‘record, document or writing, or marking on a will’ to help determine the will-maker’s true intentions, and to give effect to them. Accordingly, the court will have the power to order that a written or electronic record stand as a person’s last will.”

He said that could include an unsigned or improperly executed will, lawyer’s notes from discussions with the person, a copy of a will stored on the person’s computer or electronic tablet, an email sent from the person setting out his or her testamentary intentions.

It will become possible for emails to be held out as the true intention of the will, he said, or for a separation agreement to surface that may be held out to be a statement of the spouse’s testamentary intentions and may be declared by the court to be a valid alteration or an actual will

Rectification also may be ordered if the court determines that an otherwise valid will does not carry out the will-maker’s intentions because of an accidental slip or omission, a misunderstanding of the will-maker’s instructions by the lawyer, notary or another person involved in the preparation of the will, or a failure to carry out the will-maker’s instructions in drafting the will.

Those increased powers vested in the court are probably the most controversial changes.

“The court’s expanded powers will likely lead to increased litigation, such as by disappointed heirs coming forward with email or other writings of the deceased to demonstrate that the will does not show the deceased’s ‘true intentions,’” Todd said.

In terms of other changes, right now, unless a will states you are specifically contemplating marriage to a certain person, marrying after the execution of a will revokes it. WESA removes this stipulation.

“It had been thought that this requirement may not be well-known by the general public, and thus could accidentally frustrate the intentions of the will-maker,” Todd said.

“As well, given the rising number of common law marriages, this requirement would apply inconsistently to formally married and common law couples.”

Todd added that he thought the new law brought big improvement by reversing the onus in cases where allegations of undue influence arose so that it falls on those who received the gift.

If the validity of a will is challenged on the ground of undue influence at the moment, the onus is on the person making the allegation to prove it.

Initially, the law proposed removing the right of an adult independent child to contest a parent’s estate because the child was not adequately provided for in the will.

Todd was among those who fought that particular proposal and prevailed so that the century-old provision was not changed.

In general, WESA gives the courts much greater leeway to give effect to the intentions of the will-maker — whether that increases or reduces certainty, we’ll have to wait and see how the judges exercise their new authority.

 

Priority for Applicants to Be Appointed Administrator In Intestate Estates

 

Section 130 of WESA is a new section that provides for a priority of the various persons who may be entitled to apply for a grant of administration where the deceased died without a will (intestate)

The spouse has priority but may nominate another third party in his or her place, be it a Trust company or another person.

If a child of the deceased applies then the consent of the majority of the other children is necessary.

Section 130 states:

Priority among applicants—intestate estate

130 If a person dies without a will, the court may grant administration of the deceased person’s estate to one or more of the following persons in the following order of priority:

(a)            the spouse of the deceased person or a person nominated by the spouse;

(b)       a child of the deceased person having the consent of a majority of the children of the deceased person;

(c)        a person nominated by a child of the deceased person if that person has the consent of a majority of the deceased person’s children;

(d)       a child of the deceased person not having the consent of a majority of the deceased person’s children;

(e)       an intestate successor other than the spouse or child of the deceased person, having the consent of the intestate successors representing a majority in interest of the estate, including the intestate successor who applies for a grant of administration;

(f)        an intestate successor other than the spouse or child of the deceased person, not having the consent of the intestate successors representing a majority in interest of the estate, including the intestate successor who applies for a grant of administration;

(g)            any other person the court considers appropriate to appoint, including, without limitation, the Public Guardian and Trustee, subject to the Public Guardian and Trustee’s consent.

Prior to this section under the Estate Administration act, no clear priority of applicants existed, and the court had discretion to appoint one r more net of kin.

 

S 131 states that where there is a will but no executor named, or the executor has renounced or is unable or unwilling to act, s 131 also sets out a priority of who may apply:

1) a beneficiary who applies having the consent of the beneficiaries representing the majority interests of the estate, including the applicant;

2) a beneficiary who applies not having the consent of the beneficiaries representing the majority interest of the estate , including the applicant

 

S 132 gives the Court an overriding discretion to appoint any person including the Public Guardian where the Court considers there are “special circumstances” after considering the priority of applicants under S 131 or S 132.

This provision is similar to the previous S 7 of the Estate Administration act, now repealed.

WESA #34- S. 2 Definition of Spouse Still Unclear

I was recently asked to write an article on the effect of WESA on the Wills Variation act for the Canadian Bar Association.

There in fact are very few changes under WESA relating to the WVA, other than what the original definition of spouse had been under the Wills Variation act

I wrote my article and then had to withdraw it at the last moment as the Government introduced legislation only a few days before the introduction of WESA on April 1, significantly changing the definition of Spouse.

 

The conflict arises between the definitions of spouse under the Family Law act, and that of spouse under the Wills Variation act.

Anna Laing, a senior lawyer who does both Family and Estate litigation posed the following question to senior practitioners today. I admittedly do not know the clear answer:

a)         whether the surviving spouse can commence a Family Law Act proceeding against the estate of the deceased spouse or simply has a trust claim against the deceased spouse’s estate for his or her share of the family property.  I surmise your answer might be the former based on this statement:

Essentially, the court will have to determine WHAT the deceased actually owned at the date of death, given that the separated spouse had an interest in spousal property.  Upon the determination of the spouse’s share of family property, the spouse would have a claim on the estate like any other debtor and would have to be paid (or consent) prior to any distribution of the estate.

In that case, is it your view that the surviving spouse can access the reapportionment provisions of the FLA?  Can the spouse access s. 96, which allows a spouse to make a claim against excluded property, even though the spouse does not acquire an undivided one-half interest in that property upon separation?

 

b)         what happens in the case of a surviving spouse where the deceased spouse died owning a lot of property that happened to all qualify as excluded property.  Put in concrete terms, when spouses A and B marry, spouse A has $20,000,000 in assets.  She supports the couple lavishly during their marriage but when she leaves Spouse B after 12 years of marriage, her assets are worth $17,000,000 and are excluded property.    She dies shortly after separation before Spouse B has commenced an FLA proceeding but after making a will that disinherits him.  Had she lived, she would likely have a significant support obligation to Spouse B.  Under the Wills Variation Act, Spouse A would likely have at least a moral obligation to have made some provision for Spouse B.  It seems to me that under the FLA and WESA as currently constituted, Spouse B gets nothing.  That does not seem right.