Trevor Todd and Jackson Todd have over 65 years of estate litigation experience involving inter alia handling disputed wills and estates of all natures.                                    

                                       Unsigned and Defective Wills Under WESA

Prior to the introduction the Wills, Estates and Succession Act, SBC 2009, c.13 [WESA] on April 1, 2014, British Columbia was previously a “strict compliance” jurisdiction with respect to the proper execution of a will.

The English Wills act of 1837 set uniform rules for the making and the revocation of wills, and introduced the “attested” will as we know it, with the requirements of writing signatures and attestation by witnesses. That law was received into British Columbia statutes and the formalities of will-making are now contained in section 37 of WESA.

Hardship and injustice often arose in particular cases due to the strict compliance regime, primarily having to do with the defective execution of the testator or two witnesses, all of whom were required to sign in the presence of each other. Certainly, if the testator neglected to sign the will it was invalid and there was no legal remedy to cure the defect.

Post-2014 a large body of case law has developed in British Columbia concerning the validation power found in section 58 of WESA. The case law is not always necessarily consistent, but overall, the court’s application of this provision has been given a large and liberal interpretation that is appropriate for such remedial legislation. There are now many cases where unsigned wills or digital wills have been found to be valid under proper factual circumstances.

It must be stressed that each case is intensely dependent on the specific factual evidence, including allowing the admissibility of extrinsic evidence, both before and after the purported will was prepared.

The Legislation

Section 37 of WESA sets out the requirements for a will to be valid:

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],

..

Section 58 WESA provides the court with the power to cure deficiencies in a testamentary record:

 

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

Leading Cases Under s.58 WESA

The guiding principles that underpin s. 58 applications were summarized in Re Hadley Estate 2017 BCCA 311 at paragraphs 33-36.

Of utmost importance is the requirement that the document must be a deliberate or fixed and final expression of intention as to the disposal of property on death.

For an order to be granted under s. 58 of WESA the court must be satisfied that the document represents the final testamentary intentions of the deceased person. Section 58 does not require a minimum level of execution or other formality for a testamentary document to be found fully effective. Regardless of its form, if the court grants an order under section 58(3), the document may be admitted to probate.

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

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

Re Hadley Estate stated that the material time for determining testamentary intentions on a s.58 application is the time when the document in question was created. However, depending on the circumstances, the material time may vary on this key issue. For example: after creating the document the will-maker may by words or actions, manifest a fixed and final intention that expresses how his or her property is be disposed of on death, and thus it operates as a will. In other words, a document may acquire a testamentary character by subsequent and sufficient manifestation of the will-maker’s intention. However, in most cases the focus of inquiry will be the will maker’s intention when the document was prepared and was to be executed.

The court must explore all of the surrounding circumstances to form an opinion as to the will-maker’s state of mind. The courts recognize that will-makers often change their mind as to their testamentary intentions, and accordingly extrinsic evidence of testamentary intent is admissible on the inquiry.

In Re Hadley Estate, a 73-year-old deceased handwrote a journal indicating her testamentary wishes. She then made a will with a lawyer in 2008. In 2014 following a health scare she made a journal entry entitled “this is my last will” that deleted a few beneficiaries included in the 2008 will. The deceased subsequently had several conversations with her bank and lawyer in which she indicated she wished to make a new will, but she died before doing so.

Both the trial judge, and the Court of Appeal found that the journal entry did not represent the deceased’s full final testamentary intentions, but rather were notes made only to herself.

The facts in Re Hadley Estate are somewhat similar to other unusual fact patterns where the courts have carefully scrutinized the evidence in determining whether the document was in fact the full, final testamentary intentions of the deceased.

In Skopyk Estate, 2017 BCSC 2335, the court made an order under s. 58(3) despite the document in question departing significantly from WESA’s formal requirements. While in hospital, the deceased informed his niece that he was working on his will, and that his current wishes were different than those expressed in his existing will. Following the deceased’s death, a document was found pinned to a bulletin board on the inside of his front door. The document was handwritten and was neither dated or signed by the deceased. The handwriting was compared to a letter of the deceased had written and was found to be reasonably similar. In determining whether the document represented a deliberate or fixed and final expression of the deceased testamentary wishes, the court considered the following factors:

• The document was pinned to a bulletin board where it could easily be found;
• the distribution set out in the document was rational on its face in the sense that his sister, who had been included in his previous will had since died;
• the document clearly directed the division of the residue of the estate to certain named persons in certain specific shares with language that mirrored the language of the 1995 will;
• although the document was not signed or witnessed the word witness is written near the bottom;
• although the document was not dated there is a reference at the top of document referring to the deceased’s will dated November 16, 1995. It also purports to correct a typographical error in a specific paragraph of the 1995 will; and
• the handwriting was reasonably similar to handwriting in a letter entered into evidence

In weighing the evidence, the court was satisfied the document was a deliberate expression of the will-maker’s wishes as to the disposition of his property upon his death.

Re Hubschi Estate, 2019 BCSC 2040 had a somewhat unusual fact pattern where the court held that an electronic Word document found on the deceased’s (password protected) personal computer after his death, to be a valid will. A search of his premises after death located several documents and a self-counsel wills book, indicating that he had formed an interest in preparing a will. Some written notes were located adjacent to the book revealing his intentions to leave his estate to various individuals. His personal computer was able to be unlocked and a document called Budget for 2017 included the following –“get a will made out at some point. A A5 – way assets split for remaining brothers and sisters. Greg, and that or Trevor as executor.” Trevor was his nephew.

The court concluded that the digital record represented the deceased’s testamentary intention that his estate was to be divided by a 5-way split for his remaining brothers and sisters. The computer entry and when he reviewed the document occurred on the day he died, and so the court found this to be evidence reflective of his testamentary intention at the time.

Similarly, in Rempel Estate, 2020 BCSC 1766, the court found that one document amongst others contained on two memory sticks was in fact a valid will that could be cured of any deficiencies pursuant to s.58 of WESA. This case is one of several indicating a trend for the courts to examine digital wills, and if satisfied the document demonstrates a deliberate or fixed and final expression of the deceased’s intention regarding disposal of property on death, to then cure any deficiencies and find a valid will. None of the documents were signed or witnessed, but did reveal and involve personal records, which were testamentary in nature.

The memory sticks had been located in the deceased’s computer found in his residence. The first memory stick contained recordings, including a voice memorandum between the deceased and a notary dealing with various testamentary expressions.

The second memory stick contained file folders and subfolders that contained various electronic drafts of documents which expressed his testamentary intentions. They all started with his address in the opening line that stated -“in the event of something happening to me, and having no other proper will, this is  how I wish my estate to be handled”. There was a space for a signature below which he typed his name month and year of the document.

The court specifically found that under section 58(1) of WESA that the document was a record that was stored electronically, could be read by a person, and capable of reproduction in a visible form. The court then cured the deficiencies under section 58(3), and found the will to be valid

Jakonen Estate, 2022 BCSC 2261, at paragraph 44, listed a number of factors to be considered when analyzing a document or record as to its final testamentary intentions:

1. was the document or record made by the deceased or by a third party? A document made by the deceased is more likely to be given effect to a document made by a third-party, including a lawyer’s draft;

 

1. where was the document or record found? If the deceased left the document or record in a prominent place where it was likely to be found, or with other testamentary documents, the document or record is more likely to be given effect;

 

1. is the document or record signed, or is there any other compliance of the formal requirements set for a valid will? The greater the degree of compliance with the formal requirements, particularly if the document was signed, the greater the likelihood the document or record will be given effect;

 

1. is there a title on the document or record? If a document or record is given the title will or codicil, or a similar notation, it is more likely to be given effect

 

1. is the language of the document or record dispositive, and does it have an air of finality? If so, it is more likely to be given effect;

 

1. does the document or record provide for a rational distribution? If so, it is more likely to be given effect; and

 

1. is the document or record consistent with other evidence of the deceased’s intentions? If so, it is more likely to be given effect.

In Bizicki Estsate,2019 BCSC 2142, the court admitted two of three notes into probate as the last will of the deceased. The deceased was a bachelor who had no children, was unsophisticated, and was a long-time sole tenant of a room at a downtown hotel in Vancouver. He had left notes stating that his wish was that his long-time girlfriend receive the money in his bank accounts and other personal property. His girlfriend could not read or write English and she found three original notes on separate pieces of paper, only one of them being dated November 23, 2009. The court found that each of the notes was written in contemplation of death and addressed what would be done with his property when he is dead. Expert handwriting evidence established that the three documents were written by the deceased.

In Re Fleury Estate, 2025 BCSC 22, the deceased had a will from 2007, and the question was whether the subsequently drafted but unsigned wills revoked the 2007 will. The trustees asked the court to determine whether the deceased’s estate should be distributed in accordance with her 2007 will, or in accordance with one of two draft wills prepared by the deceased’s solicitor based on instructions given just prior to her death. The 2007 will provided for an equal distribution of the residue of the deceased’s estate to her children through the establishment of three testamentary trusts.

The two draft wills were prepared largely to the same effect, but also contained a bequest to her long time common-law spouse. The first will provided that the spouse received $25,000, and the right to occupy the matrimonial home for up to five years following her death. Under the terms of the second draft will, the spouse was to receive $50,000, but no right to occupy the house. The spouse took the position that the deceased revoked the 2007 will, did not replace it with a new one, and as such, argued that the deceased died intestate.

On the assessment of the evidence the court concluded that the latter of the two draft wills set out the deceased’s final testamentary intentions. The deceased intended to revoke the 2007 will and replace it with a new one that provided for a bequest of $50,000 to the spouse, after which the residue of her estate was to be shared equally by the deceased’s three children. The second draft will was found valid, and reflected the deceased’s fixed and final testamentary intention to revoke the 2007 unsigned will, and to distribute her estate in accordance with the terms set out in the second draft will.

Cases Where the Court Refused to Remedy a Defective Will Under Section 58 WESA

 

A review of the preceding case law would indicate that the court frequently gives a liberal interpretation as to the fixed and final testamentary intention of the deceased after carefully analyzing the specific facts of each case.

As previously referred to, Re Hadley Estate, one of the leading cases in BC, the Court of Appeal declined to cure the will, finding that the purported unsigned will were merely working notes of the deceased that did not express her full and final testamentary intentions.

There are various cases where the court has refused to invoke s.58 WESA, primarily on the basis that it did not find that the document did in fact express a final and fixed testamentary intention, but was instead something else, such as working notes, or generally lacked finality.

In Bailee Estate, 2016 BCSC 1226, an unsigned draft will was found not to represent the deceased’s fixed and final testamentary intentions. A lawyer had prepared a draft will based on the deceased’s instructions and there had been several back-and-forth drafts leading up to that draft. However, and despite several reminders from her lawyer that she should make an appointment to sign the will, the deceased never confirmed or signed the will.

The court accepted evidence that the deceased had said she needed to set up an appointment to complete the draft will, but that the statement taken at its best indicates that she wanted to replace her 2008 will with a new will, and that the statement could have meant she had changes to make, not that she intended on signing the draft as it stood. The deceased had also not revoked her previous will and the court concluded the draft will was not the deceased’s fixed and final testamentary intention and the application under s. 58(3) WESA was denied.

In Paige v Kissel Estate, 2025 BCCA 358, the Court of Appeal overturned a chambers judge’s order that declared that two electronic communications from the deceased were fully effective to alter her will, removing the appellant as a beneficiary.

The Court of Appeal held that the chambers judge erred in law by misinterpreting the requirement of a fixed and final testamentary intention under s.58 of WESA and failed to give effect to the words expressed in the record and to consider all the extrinsic evidence relevant to the deceased state of mind of the material time.

The chambers judge equated the deceased’s unwavering statement with a legally operative intention and failed to recognize that the deceased expressly intended to effect the change by making a new will. The court found that the deceased’s communications contemplated future action and did not themselves constitute a testamentary disposition. The deceased’s statement that the current will should stand until she got a new one demonstrated that she did not intend the message to operate as a revocation or alteration of her existing will. The court concluded that the messages were insufficient to meet the requirements of s. 58 WESA.

In Dela Cruz Estate, 2023 BCSC 843, the court dealt with a handwritten written document of the deceased that discussed testamentary dispositions, but stated that she did not complete the preparation of the will because she loved her family and could not make up her mind as to how to divide her estate. As such, the handwritten document and other documents were found to be working papers, and did not indicate a fixed intention as to how she wished her estate to be divided.

It appeared that the deceased started to revise several of the handwritten documents as to the percentage form, but only for some of the named beneficiaries. It was more probable than not that at the time she had not yet decided how she wanted her estate to be handled, and that was the case in 2018 as well when she saw a lawyer, yet still no will was drafted. The handwritten document was more likely a work in progress, together with the other unsigned and undated notations and instruction she collected over the years, never having finalized her intentions.

In Poulk Estate, 2018 BCSC 1321, the purported will was a fill in the blanks stationary form that was not completed by the deceased, and in all likelihood the document was completed by a beneficiary of the will. The will was not signed by the will-maker and there was nothing on the face of the will to indicate that they knew and approved of the contents of the will. The deceased was in hospital and died seven hours after the will was prepared. The court stated that even if there was sufficient evidence to establish the will-maker knew and approved the contents of the will, it was far from clear that the will was a fixed and final expression of their testamentary intention. The court found that the hospital records of the deceased indicated that he may not have appreciated the severity of his illness or the imminence of his death. The affidavit material fell short of compelling the court to find reliable evidence that the will was both final and authentic.

In Paige v Noel, 2025 BCCA 358, the Court of Appeal stated that the fixed and final intention must be grounded in the document itself, in that the document must be intended to affect the testamentary disposition. The Court of Appeal overturned the trial judge’s decision, holding that the requirement of s.58 WESA is that the will-maker must intend for the communications themselves to be testamentary in nature. Testamentary intention is not simply an expression on how a person would like to dispose of property after death.

The importance of the words being fixed and final at the material time cannot be understated. Section 58(2) WESA requires that the record, document or writing represents the testamentary intention of the deceased person, whether to make a will or to revoke or alter an existing will. A fixed and final intention must be grounded in the document itself and the document is intended to affect the testamentary intention.

The curative provisions of s. 58 WESA were declined in De Bon Estate, 2021 BCSC 505, where the court refused to vary a January 2012 will that the deceased referred to in six subsequent letters that purported to vary the 2012 will in various degrees.

The deceased was familiar with the preparation of wills as he had prepared and had delivered to the wills registry six notices of filing of earlier versions of a will, all prior to the January 2012 will. The court was satisfied that the documents were created by the deceased – not all were signed by him, but they were clearly prepared in his handwriting. They were delivered to the executor and were referred to as instructions to assist and provide guidance to the executor of the estate, or to whom it may concern, and were contradictory with respect to what part of the bequests were going to be distributed to which individual and at what time.

The court found on the balance of probabilities that the provisions of the January 2012 will remained unaffected by the subsequent letters and notations and none of them purported to be a will dealing with intentions of someone who was well aware of the statutory elements a will must contain.

Cates v Quinn, 2016 BCSC 1226, is an example of how fact-specific s.58 WESA case law is with respect to unsigned wills. While there are many examples where lawyer drafted unsigned wills have been cured and found to be valid, Cates is an example where the specific facts were such that the court refused to cure a lawyer’s drafted unsigned will.

In May 2013 the deceased told her lawyer that she wished to make changes to her 2008 will. Several different drafts culminated in a draft will in December 2014. The deceased then died in October 2015, without having signed the will.

The court found that the preparation and anticipated execution of the draft will was not of paramount importance to the will-maker. The will-maker gave instructions to the lawyer at different times, missed meetings, put off reading a previous draft, and postponed a meeting with the lawyer to review the draft will despite several reminders from the lawyer. The Deceased did not indicate to anyone that the draft will set out her intentions and she did not expressly revoke the 2008 will by deed or word.

Conclusion

 

From the foregoing authorities, the following principles are established:

1. the onus is on the petitioner to prove on a balance of probabilities that:
2. the document is authentic; and
3. the document embodies the fixed and final, as opposed to a revocable testamentary intentions of the deceased:

 

2. The factors thus taken into account in determining whether the document contains the testamentary intentions of the will-maker include:

 

1. the presence of the deceased signature;
2. the deceased’s handwriting, or printing;
3. witness signatures;
4. revocation of previous wills;
5. funeral arrangements;
6. specific bequests;
7. the entitlement of the documentation such as is referred to as a will; and
8. any such other factors as may be relevant, given the context.

 

Section 58 of WESA is a curative provision that confers a discretion on the court to relieve against the consequences of non-compliance with testamentary formalities in the “record, document or writing or marking on a will or document”. In prescribed circumstances, s. 58 WESA permits the court to address and cure issues of formal invalidity in such documents, that would have otherwise historically prevented such testamentary wishes from being realized. It cannot, however be used to uphold a will that is invalid for substantive reasons such as testamentary incapacity or undue influence, or otherwise, does not demonstrate fixed and final intention.

There is now a fairly well-developed body of case law that supports the need for such curative legislation given the previous strict compliance that was required before the introduction of WESA that undoubtedly led to many unintended hardships and inequities. Failure to sign the will is certainly not the only defect that the courts have dealt with under s.58 WESA but it probably the most common oversight that has been dealt with in the case law since WESA was introduced