Unwitnessed Will Valid: S.58 WESA

Unwitnessed Will Valid: S.58 WESA

Re Riguidel Estate 2017 BCSC 1667 found a signed but unwitnessed will to be valid by invoking the curative provisions of Section 58 WESA.

The Facts:

The people present when the deceased signed the handwritten and typed documents were the deceased, Ms. Leonard and Mr. Kapinus. The deceased was present when Ms. Leonard and Mr. Kapinus signed their names as witnesses to the deceased’s signature.

[28] Mr. Kapinus also states that he was unaware that two witnesses were required. He used the same language as Ms. Leonard did in her Affidavit, where he swore:

16. The Deceased appeared confident about signing the Will. He did not hesitate. I asked him if the Will was exactly what he wanted and he advised me that it was.

17. At no time did I observe anyone pressuring the Deceased to change his Will or to make any specific gift.

18. The Deceased and I discussed the Will and it was clear that it reflected his final wishes. The Will is consistent with my prior discussions with the Deceased.

19. I have no reason to believe that the Will is not an accurate reflection of the Deceased’s final wishes. I observed no evidence that the Deceased was forced or compelled to distribute his estate in the manner set out in the Will. The Deceased appeared to be thinking clearly at the time. He was not confused and he understood what he was doing.

[29] The most compelling evidence is that of Donna Malley, the deceased’s daughter. She states that when she learned of her father’s cancer diagnosis in January 2016. She travelled to Kamloops in order to be with him, arriving on or about February 11, 2016. She swears to the following:

3. I have learned that prior to my arrival on February 11, 2016, my father signed a document to vary his will (the “Codicil”), a true copy of which is attached hereto as Exhibit “A”.
(Exhibit A is the typewritten document prepared by Mr. Kapinus).

[30] Ms. Malley also swears the following:

4. On or about February 13, 2016, I had a conversation with my father, at which time he advised me that it was important to him that my sister, Debi, was to obtain the house that he owned after he died, as she had done so much for him.

5. Debi and her husband, Vince, lived with my parents for many years and contributed to the construction and upkeep of the house.

6. It is my understanding and belief that after my mother died, my father realized that he did not have enough money to pay his mortgage. In or about early November 2015, I was present during a conversation between my sister Debi Riguidel, Vince Kapinus, and my father in which Debi and Vince told my dad not to worry that they would pay his mortgage and bills and ensure that he would always be taken care of financially.

[31] In her Affidavit, Ms. Malley sets out her understanding as to why her sister and Mr. Kapinus were to receive the house, and describing their relationship as a “trusting and loyal friendship”, and that it is “his way of saying that he will always take care of them in the same way that they did for him”. She further swears:

11. I believe that my father intended to provide Debi and Vince with his house in part because both my sister, Kimberly, and I have houses of our own and we did not live with my parents as adults.

12. I am confident that the February 11, 2016, Codicil prepared by my father and attached hereto as Exhibit “A” is a true and accurate reflection of my father’s wishes.

The Law

[34] In Young Estate (Re), 2015 BCSC 182, Madam Justice Dickson, as she then was, described some of the factors that should be present when seeking a non-compliant document to represent the deceased’s person’s intention under the curative provisions of s. 58(3) of WESA. In determining the deceased’s final testamentary intentions, Madam Justice Dickson wrote:

[36] The burden of proof that a non-compliant document embodies the deceased’s testamentary intentions is a balance of probabilities. A 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 the deceased’s signature, the deceased’s handwriting, witness signatures, revocation of previous wills, funeral arrangements, specific bequests and the title of the document: Sawatzky at para. 21; Kuszak at para. 7; Martineau at para. 21.

[37] While imperfect or even non-compliance 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’s testamentary intention: George at para. 81.

[35] The curative provisions of s. 58(3) of the WESA are fact sensitive.

[36] Extrinsic evidence is permitted in order to determine whether the non-compliant document is the deceased’s final expression, as to his or her testamentary intentions pursuant to s. 58(3) of WESA: Litke Estate (Re), 2017 BCSC 1079 at para. 39.

[37] It comes down to this – whether the document presented was prepared by the deceased and that its contents represent a “deliberate or fixed and final testamentary intention at the material time for the disposition of the estate: Litke Estate (Re) at para. 42.

Discussion

[38] I am satisfied, on the evidence, that the documents dated February 7, 2016, copies of which are in Appendix 1 to these reasons, are the deliberate expressions of the deceased’s wishes as to the disposition of his property upon his death.

[39] I also find that the handwritten document signed by the deceased and the witnesses, Ms. Leonard and Mr. Kapinus, in the deceased’s presence was to record and confirm that the typewritten document set out the terms of the handwritten document, which reflected the deceased’s intentions before the deceased signed the typewritten document.

[40] It is clear from all of the evidence that the deceased recognized a moral, if not a legal obligation, to his daughter and son-in-law for their contributions to his estate.

[41] I determine that the typewritten document dated February 7, 2016 represents and embodies the deceased’s testamentary intentions sufficient to alter his Will as to the disposition of the assets of his estate and is effective as part of the Will

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

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