Unwitnessed Documents Found to Be a Will
In Re Yaremkewich 2015 BCSC 1124 , the deceased left three documents in one envelope that appeared to be testamentary in nature, but did not comply with formal execution requirements of the Wills Estates and Succession act (WESA), which were determined to be one valid will.
S 58(3) (A) of WESA empowered the court to order that the documents or other record was fully effective as the last will of the deceased person if the court is satisfied that the documents represented the testamentary intentions of that deceased person.
Here, the court was satisfied that the three documents did so, and that they should collectively be treated as a fully effective will pursuant to section 58 of WESA.
The Formal Requirements for a Valid Will
25 The formal requirements for a will are set out in s. 37 of WESA:
37(1) To be valid, a will must be
(a) in writing,
(b) signed at its end by the will-maker, or the signature at the end must be acknowledged by the will-maker as his or hers, in the presence of 2 or more witnesses present at the same time, and
(c) signed by 2 or more of the witnesses in the presence of the will-maker.
(2) A will that does not comply with subsection (1) is invalid unless
(a) the court orders it to be effective as a will under section 58 [court order curing deficiencies],
(b) it is a will recognized as valid under section 80 [validity of wills made in accordance with other laws], or
(c) it is valid under another provision of this Act.
26 On the evidence, I am satisfied that the Will does not comply with the formalities of WESA. The effect of sections 37(1)(b) and (c) is that Ms. Yaremkewich had to sign or acknowledge her signature in the presence at least two witnesses who were present at the same time and signed in the presence of the will-maker. In the circumstances, it is clear that the will form was not validly witnessed as required by WESA.
Therefore, Ms. Yaremkewich’s will was not validly witnessed in accordance with WESA, ss. 37(1)(b) and (c).
29 WESA, which came into effect on March 31, 2014, contains a new provision in s. 58 that even if a document fails to comply with the formalities of the statute, a court may nonetheless order that the document is fully effective as if it had complied with the statute. The provision reads as follows:
Court order curing deficiencies
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.
30 Accordingly, s. 58(3)(a) empowers the court to order that a document or other record is fully effective as the will of a deceased person if the court is satisfied that the document represents the testamentary intentions of that deceased person.