Category: Contested Wills

Ordinarily Resident

Waslenchuk estate 2020 BCSC 1929 dealt with a common issue in estate litigation- when will wills made in other jurisdictions apply to British Columbia- the issue usually is resolved by where was the deceased ordinarily resident.

Section 101 of WESA provides that regardless of where a will is made, the administration of an estate of a deceased person who was ordinarily resident or domiciled in British Columbia at the date of the person’s death is governed by the statute.

A person is ordinarily resident in the place where, in the settled routine of their life, they regularly, normally, or customarily live. It is not determined by counting the number of days a person spends in the jurisdiction: Cresswell v. Cresswell Estate, 2017 BCSC 178at para. 26,

The court cited Blazek v. Blazek, 2009 BCSC 1693 at paras. 31- 33.

Ordinarily Resident

Section 3 of the WESA provides that the court has territorial competence in a proceeding if the person is “ordinarily resident in British Columbia at the time of the commencement of the proceedings.”

The meaning of “ordinarily resident” has been considered by the courts on many occasions.

The authority often referred to is Thomson v. Minister of National Revenue (1945), [1946] S.C.R. 209, [1946] C.T.C. 51 (S.C.C.), where Mr. Justice Estey stated:

“A reference to the dictionary and judicial comments upon the meaning of these terms indicates that one is “ordinarily resident” in the place where in the settled routine of his life he regularly, normally or customarily lives. One “sojourns” at a place where he unusually, casually or intermittently visits or stays. In the former the element of permanence; in the latter that of the temporary predominates. The difference cannot be stated in precise and definite terms, but each case must be determined after all of the relevant factors are taken into consideration, but the foregoing indicates in a general way the essential difference. It is not the length of the visit or stay that determines the question. ”

“ordinarily resident” should be given a broad and liberal interpretation, in accordance with the provisions of the Act regarding corporations ordinarily resident in the province; “ordinarily resident” does not require a counting of days in which a party may spend in this jurisdiction. One can be ordinarily resident in more than one jurisdiction.
. . . . .
It is well established that a person may have more than one residence…

Domicile is based on a person’s choice to fix voluntarily their sole or chief residency in a particular place with an intention to continue to reside there for an unlimited time: Sato v. Sato, 2017 BCSC 1394at paras. 7-10, 14, aff’d 2018 BCCA 287 at paras. 45-48, 51, 53.

Memory Stick Will Valid: S. 58 WESA

Rempel Estate v Dudley 2020 BCSC 1766 held that one document amongst documents contained on two memory sticks, was in fact a valid will that could be cured of any deficiencies pursuant to section 58 of WESA.

The case is one of several indicating a trend for the courts to examine digital wills and if satisfied that the document demonstrates a deliberate or fixed and final expression of the deceased’s intentions regarding disposal of property on death, to then cure any deficiencies under section 58 WESA.

In the Rempel case none of the documents were signed or witnessed, but did reveal 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 contain various electronic drafts of documents which express the deceased testamentary intentions. They all started with his address in the opening line states- “In the event of something happening to me, and having no other proper will, this is how I wish my estate to be handled.” The documents and with the statement “ These are my wishes” and there is a space for a signature, below which he typed his name, month and year of the document.

Hearsay statements in the memory sticks were held reliable and that they are repeated in many of the documents prepared by the deceased over a considerable period of time, and as such are reliable as to his intentions regarding the disposition of his estate ( see Pasko v Pasko 2020 BCSC 435 at para. 10.)

Section 58 WESA permits the court to cure deficiencies in wills and cure noncompliant documents that constitute a deceased testamentary intentions and states:

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 section 3 if the court determines that a record, document or writing or marking on a will or documents represents
a) the testamentary intentions of the deceased person,
b) the intention of a deceased person to revoke, alter or revive a will or testamentary disposition of the deceased person,
c) or the intention of a deceased person to revoke, alter or revive a testamentary disposition contained in a document other than the will.

Section 3 goes on to provide that the court may, as the circumstances require, order that a record or document or writing or making 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.

The case law in British Columbia In such decisions as Estate of Young, 2015 BC SC 182, which followed a leading authority in Manitoba George v Daily ( 1997) 143 (4th) 273 ( Man C.A.) seems well settled :

“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.”

Cntested Wills Vancouver-Undue Influence and the “Doctrine of Righteousness”

Trevor Todd and Jackson Todd have practiced contested estate law for over sixty years, including claims for undue influence.

Halliday V Halliday 2019 BCSC 554 discusses the historical concept of the “doctrine of righteousness”, developed in the 1800s to protect will- makers from the behavior of those who may seek to procure a benefit from another individual’s will, especially through the exercise of undue influence.

The solicitor who made 2014 wills for the deceased felt there was no need to consider the testator’s mental capacity, took no steps to do so, and was unaware of his 2012 diagnosis of dementia.

The court found that the solicitor did not turn his mind to whether the testator said anything inappropriate are displayed signs of cognitive impairment. Evidence was given as to the deceased becoming sexually uninhibited, losing interest in lifetime activities, and forgetting the names of people that he knew well.

The court found that the testator lacked a disposing mind and memory at the time the executed the 2014 wills, and set the wills aside. The defendant did not show that the testator had testamentary capacity and knew and approved of the contents of the 2014 wills.

The court quoted from Mr.Poyser’s book Capacity and Undue influence at pages 247 – 248:

“The principle is that whenever a person is instrumental in the generation of a will under which he or she benefits, or the circumstances are otherwise of a character that causes the court to be concerned over whether the will maker truly understands the will and its effect, the court can refuse to put the will to probate, unless given affirmative proof that the will maker had actual knowledge of its contents and operative effect. That principle was historically referred to as the doctrine of righteousness, a label that appears to be following from judicial vote due to the implied focus on moral considerations. It would be better referred to as the rule from Barry v Butlin , or the procurer principle, or perhaps most descriptively could be referred to as the requirement for true and informed approval”

The BC Court of Appeal inCowper –Smith v Morgan 2016 BCCA 200 stated that where there is a concern over the possibility of undue influence, there is a need to give informed advice on the merits of the transaction.

At paragraph 51 the court stated that the following considerations have been identified as relevant to the assessment of the legal advice provided to the donor:

Whether the party benefiting from the transaction is also present at the time the advice is given and/or at the time the documents are executed;
Whether through technically acting for the grantor, the lawyer was engaged by and took instructions from the person alleging to be exercising the influence;
In a situation where the proposed transaction involves the transfer of all or substantially all of a person’s assets, whether the lawyer was aware of that fact, and discussed the financial implications with the grantor;
Whether the lawyer inquired as to whether the donor discussed the proposed transaction with other family members who might otherwise have benefited if the transaction did not take place;
Whether the solicitor discussed other options, whereby he or she could achieve his or her objective with less risk.

Simply knowing and approving the contents of the will ” in the abstract” is not sufficient to establish the requirement for knowledge and approval unless there is also an understanding of the operative effect of the provisions. Russell v Fraser ( 1980) 118 DLR (3d) 733 (BCCA) at para.12

The court went on to discuss section 52 of WESA that established that a person was in a position where the potential for dependents or domination of the will maker was present, the attacker of the will is aided by a presumption that it was executed under undue influence.

Section 52 of WESA provides that once the party alleging undue influence establishes that the alleged influencer was in a position where the potential for dependence or domination of the will maker was present, the onus rests on the party seeking to uphold the will to prove that undue influence was not exercised.

It is insufficient to establish that a person had the ability to unduly influence the will maker. The evidence must provide that in the particular case the power was exercised, and that the will is a product of that exercise of power. The exercise of significant advice or persuasion on the will maker, or an attempt to appeal to the will maker, or the mere desire of the will maker to gratify the wishes of another, will not amount to undue influence.

Wills Variation: No Presumption of Paternity

There is no presumption of paternity in British Columbia in wills variation cases so paternity must therefor be proven. Under section 26 of the Family Law act however, there are several types of recognized paternity relationships that give rise to a presumption of paternity.

Wills Variation Cases

In Barnes Estate v Barnes 2013 BC SC 1846 the court stated:

Section 26 of the family law act outlines a number of situations in which a male person is presumed to be a child’s biological father. There is no presumption of paternity with respect to wills actions.

In Lansing v Richardson 2002 BC SC 262, the plaintiff claimed that she was entitled to a share of the testator’s estate pursuant to the wills variation act because she was a biological daughter of the testator.However, the evidence of paternity was inconclusive.

The court held at paragraph 18:

“Under the wills variation act paternity must be established before a legal claim can be recognized: the burden under the wills variation act is on the plaintiff– to establish paternity on a balance of probabilities, and under that act there is no legislative presumptions, so the common-law burden of proof applies.”

Family Cases:

S. 26 of the Family Law act creates a number of situations in which there is a presumption of paternity:

a man may be presumed to be the child’s biological father if he was married to the child’s mother when the child was conceived and born;
a man will be the presumed father of the child if he was married to the child’s mother and the marriage ended within 300 days prior to the child’s birth. I have through death, divorce or through a declaration of an invalid marriage;
if a man seeks to marry the child’s mother, following the child’s birth and acknowledges the child as his own, his paternity will also be presumed.
There is also a presumption of paternity if the man lived with the child’s mother in a non-marital relationship within 300 days prior to the child’s birth
a father who has a nonbiological relationship with the child through adoption will have legal paternity of child.

“Inheritance” Given Broad Interpretation

The words inherit and inheritance were given a very broad interpretation in Lotimer v Johnston 2019 BCSC 2098.

The parties were married for many years, but separated in 2007 and negotiated a separation agreement.

The husband agreed that as the wife had shared an inheritance she received from her mother during the marriage, that he would provide to her 25% of any inheritance that he would receive from his mother. The agreement was negotiated between the couple and reduced to writing by lawyers.

Soon after the separation agreement was signed the husband showed the document to his mother, and a few months later, the mother changed her will, to instead leave the husband only $10,000, rather than sharing equally in her $1 million estate with his sister.

Between the date of the separation agreement and the mother’s death, the husband received gifts totaling $330,000.

The mother put the husband and his sister on title with her on her home as joint tenants.

By 2012 the mother had liquidated most of her assets and started to give them to her son, daughter and grandchildren,

The wife successfully argued that $310,000 of that sum was in fact the husband’s inheritance and ordered that the wife be paid one quarter of that said sum.

The husband argued that the dictionary definition of inherit and inheritance supports the view that it inheritances property received from an ancestor under the law of intestacy or from anyone pursuant to a will.. Both avenues contemplated transfer of property effective upon the death of the giver. He argued that the monies that he received from his mother during her lifetime were inter vivos gifts that were made not an expectation of death.

The court rejected this argument, and said that the words inherit and inheritance are not legal terms of art, having a specialized legal meaning that it must be assumed that the parties, assisted by their lawyers, intended to invoke. The court found that the agreement was substantially based on discussions between the parties, rather than careful legal drafting.

The court held that the interpretation of contractual language in most cases, including this one, is a question of mixed fact and law grounded in the circumstances at hand.

The word inheritance encompasses a range of meanings, and the court concluded that the concept of an inheritance does not require that the giver has died.

The court instead allowed a broader understanding of inheritance that encompass gifts made by the mother in her lifetime that she intended to substitute for a gift effective on death, and found that was consistent with the language used by the parties in light of the surrounding circumstances.

The gifts were found to be intended by the mother to stand in place of the testamentary bequests to her son.

Inheritance interpretation

Suspicious Circumstances

An important aspect of challenging the validity of a will due to lack of testamentary capacity is to look for suspicious circumstances which if found have the effect of shifting the onus of proof from a presumption of mental capacity to the propounder of the will having to prove mental capacity.

In addition to testamentary capacity, the propounder of a will must establish “that the testator knew and approved of the contents thereof.” With regard to this requirement, the Supreme Court of Canada in Lidstone v McWilliams ( 1931) 3 DLR 455 SCC, noted at p. 456-7:

When it has been established that a will has been duly executed by a testator having testamentary capacity, and also established that it was read by, or read over to, the testator before execution, there arises ordinarily, in the absence of suspicious circumstances, a strong presumption that he knew and approved of its contents, but there is no inflexible rule on the subject. If, however, there are circumstances which arouse the suspicions of the Court — as, for example, if the will was prepared by a person who takes a benefit under it – the party propounding the will must remove the suspicion by proving that the testator knew and approved of the contents of the document, and it is only when this has been done that the onus of proving fraud or undue influence is thrown on the opponents of the will.

Mr. Justice Lambert referred to that passage and explained the meaning of the term “suspicious circumstances” in Clark v. Nash (1989), 61 D.L.R. (4th) 409 at 425 (B.C.C.A.):

It is important to recognize that the “suspicious circumstances” referred to in that passage, and in other authorities, are not circumstances that create a general miasma of suspicion that something unsavory may have occurred, but rather circumstances which create a specific and focused suspicion that the testator may not have known and approved of the contents of the will.

The doctrine of suspicious circumstances may arise in circumstances in which the background concerning the making of the will gives rise or should give rise to some suspicion. The doctrine is intended to ensure that there is no doubt that the making of the will was the free and voluntary act of the testator. In dealing with the will, the Supreme Court of Canada in Vout v. Hay 1995 125 D.L.R. (4th) stated that when dealing with the doctrine of suspicious circumstances and the onus of proof, the party alleging undue influence must prove it, and the question becomes which is more persuasive: the evidence calling into question the validity of the will (the suspicious circumstances) or the evidence supporting it.

It is crucial that a will practitioner look for and identify factors which might appear to be suspicious and to ensure that there is ample evidence to override those circumstances as having had an effect on the testator, prior to the execution of the will. Again there should be a detailed record made of the practitioner’s observations, and the notes preserved.

A short list of the innumerable circumstances in which might be suspicious is as follows:

(a) where a gift is made to a person with whom the testator had a close relationship but which was not known or recognized by the testator’s family;

(b) where a gift is made to a person who is in a position to influence the testator, such as a care-giver, or the worst example, the party preparing the will;

(c) where an apparently unwarranted, undeserving, or unpopular gift is made to a beneficiary who, in the minds of the those left behind, should not receive the gift;

(d) where a gift is made to a beneficiary to whom the testator has had no close relationship, such as a charity;

(e) where the division of assets among the children of the testator is substantially unequal, or a certain child or children are harshly treated;

(f) where the will substantially deviates from previous wills;

(g) where a gift is made to a person standing in a fiduciary relationship;

(h) where the beneficiary accompanies the testator on each trip to your office during the process to complete the will;

(i) where you receive the testator’s instructions from someone other than the testator;

(j) Where there has been a recent serious illness or hospitalization;

(k) where there is any question at all about testamentary capacity;

(l) where there are indications of substantial medications that are potentially mind altering, being used;

(m) where there is a hasty or unwise marriage or common-law relationship;

(n) where there is evidence of depression;

(o) where there is a language/cultural disability or illiteracy;

(p) if you have been asked to prepare a will for someone by which you are to inherit, then you should ensure that the testator receives independent legal advice, and preferably take no part whatsoever in the preparation of the will.

In circumstances where the testator has a will and substantial changes are being made, it would be prudent to enquire of the testator as to the provisions of the previous will and the reasons for the changes.

Similarly if a child or children are being disinherited, you should consider preparing a detailed memorandum pursuant to the provisions of the Wills Variation Act ( now S 60 WESA) and enclosing a copy of that signed memorandum with the original will. You should try and insure the accuracy of the information, so that the testator is not subsequently viewed by the court as being vindictive, as opposed to objective.

No Ademption of Gift in Will

Re Wood Estate 2004 BCCA 556 at para. 1 describes the doctrine of ademption as

“ a rule of the law of wills, whereby a specific bequests “adeems” or fails, if at the testator’s death the specified property is not found among his or her assets – either because the testator has parted with it, or because the property has ceased to conform with to the description of it in the will, or because the property has been wholly or partially destroyed — the doctrine applies as a matter of law, irrespective of the testator’s intentions in the matter, although his or her intentions are clearly relevant to the anterior question of whether the gift is in question is a specific legacy (and therefore subject to ademption or a general one (not subject to ademption). The doctrine is also subject to the qualification that even if the gift in question is a specific legacy, it may be saved in some circumstances of the property has changed “ in name or form only “and still forms part of the testator’s property of the date of death ”.

A specific legacy was defined in Re Wood as being of something or interest, forming part of the testator’s estate, identifiable by a sufficient description is separated from the general mass of the estate in favor of a particular legatee.

A general legacy was described as a gift of something, which of the testator leaves sufficient assets, must be raised by the executors of his general estate.

The court described demonstrative legacies as a kind of hybrid between specific and general legacies. By their nature they are a general legacy, usually pecuniary, directed to be satisfied, primarily, but not solely, out of the specified fund or a specified part of the testator’s property.

In Re Thorne Estate 2018 BCSC 934 the testator under his 1997 will, bequeathed the proceeds of the sale of his home to his Goddaughter. The will also provided that if the Goddaughter so wished, she could retain title to the property, in which case she was to be responsible for paying out the reverse mortgage on the property or arranging refinancing.

The testator developed dementia 10 years later, and was placed in a special care facility costing in excess of $8000 per month.

There were virtually no other assets in his estate other than the house, and his power of attorney sold the house, paid off the substantial reverse mortgage and other charges, and set aside $50,000 for the testator’s ongoing care, with the balance being placed in an investment.

After the deceased’s death, the executors of his estate sought the court’s direction as to whether the gift to the God daughter of the sale proceeds of the house failed by reason of ademption, or if it formed part of his estate as a demonstrative legacy that was not subject to ademption so long as the sale proceeds were, as the were here, traceable and identifiable.

The court held that the gift was not a specific legacy, but instead was a demonstrative legacy and not subject to ademption as the sale proceeds were clearly identifiable.

The court applied the basic principle governing the interpretation of wills, as set out in National Trust Company, LTD v Fleury (1965) SCR 817 at 829:

“ In the construction of wills, the primary purpose is to determine the intention of the testator, and it is only when such intention cannot be arrived at with reasonable certainty by giving the natural and ordinary meaning to the words which he has use that resort is to be had to the rules of construction which have been developed by the courts in the interpretation of other wills. It is to be remembered that such rules of construction are not rules of law and that if their application results in attributing to the testator an intention which appears inconsistent with the scheme of the will as a whole, then they are not to prevail”

The court found that the deceased’s intentions were clear and that the natural and ordinary meaning of the words were sufficient to intend a gift to the Goddaughter of his residence, together with the option of retaining ownership of the residence under certain conditions.
The court found that the bequest was a demonstrative legacy and not subject to ademption so long as the sale proceeds were traceable and identifiable.

The court further stated that even if it was incorrect, and the bequest was specific in nature, the specific property in question had been changed “in name or form only, so that it exists as substantially the same thing, although in a different shape”.

Ademption Contesting a Will Demonstrative Legacies General Legacy gifts Legal Procedures Specific Legacy Understanding a Will

How to Defeat a Testamentary Gift: Beneficiary Fraud

“Fraudulent beneficiaries” has arisen in a claim that I am aware of currently before the courts, where it is alleged that the deceased was fooled to leave his entire estate to someone who he believed was his natural son from a long-ago relationship, but the son actually knew he was not the progeny of the deceased, yet played along with the deceased to allow him to believe that he was.

The estate has been challenged on the basis that the testamentary gift to the purported son should be invalidated as a result of the beneficiary perpetrating a fraud on the testator in obtaining the legacy by virtue of that fraud.

The facts are contentious yet there is a long established principle in law that “ where a legacy is given to a person under a particular character which he has falsely assumed for the purposes obtaining the bounty, and which alone is shown or is inferred to have deceived the testator, and to have been the motive of the bounty, the law on the ground of fraud does not permit the donee to avail himself of the legacy; but a false reason given for the legacy is not in itself sufficient to destroy it.”

Halsbury’s Laws of England , fourth edition, volume 17(2) at 326:

Kennell v Abbott (1799) 4 Ves.802, ER 416 is a leading case on the treatment of legacies obtained through fraud. In this decision, a woman died, leaving a legacy to my husband. The two were allegedly married but unknown to the woman, the man when she assumed was her husband was married to another woman. The master of the rules ruled that the husband was not entitled to his legacy by reason of the fraud that he had perpetrated.

How to defeat a testamentary gift:

In order to defeat a testamentary gift in these circumstances, the following must be shown:

1) A legacy given to a person of a character which the legatee does not fill and

2) There was a fraudulent assumption of that character, and

3) The testator must have been deceived by that fraud

Posner v Miller (1953) 1 All E.R. 1123

A testamentary gift to a purported son would only be invalid if there is proof of fraudulent and intentional misrepresentations that motivated the deceased to dispose of property in a manner contrary to his true intention. It is not sufficient to show innocent misrepresentation. Even if fraud is proven, the law requires proof that the false character was the sole motive for the bounty Kennell, Re Isaacs (1954) OR 942 C.A.

If there is evidence that the testator may have been motivated by other factors, then the gift is valid, despite the fraud. For example, the bequest to illegitimate children that the testator thinks are his own should stand, because it can be said that the love and affection must also have affected the testator’s intention to provide for the children and the fraud was not the sole motive or inducement for the legacy. Feeney, The Canadian Law of Wills at 3.18

The subsequent English case of Re Boddington: (1883) 22 Ch.D 597 at 112 applied the authority in the Kennell decision and held:

“where a legacy is given to a person under a particular character which she has falsely assume, and which alone can be presumed to be the motive of the bounty, the law will not permit him to avail himself of it, and therefore he cannot demand his legacy. In order, therefore, that the rule from Kennell may come into operation. There must be two things (1) there must be of the false assumption of the character of the legatee, and secondly, there must be evidence that the false character was the motive of the bounty, or a presumption or inference to that effect.

A misrepresentation can be made by silence in the following circumstances, as adopted by the Court of Appeal in Sidhu estate v. Bains (1996) 25 BCLR (3d) 41 BCCA at 101:

“A misrepresentation may be made by silence, when either the represented , or a third person in his presence, or to his knowledge, state something false, which indicates to the represented that the represented either as being, or will be, misled, unless the necessary correction be made. Silence under such circumstances is either a tacit adoption by the party of another’s misrepresentation as his own, or tacit confirmation of another’s error as truth“

beneficiaries Contesting a Will Fraud fraudulent beneficiaries gifts wills

Witness Credibility Assessment

Robledano v Jaconto 2018 BCSC 152 reviewed the law relating to the criteria to be used when assessing the truthfulness/credibility of a witness.

The case involved a claim of same sex marriage where it was disputed between the parties that such a relationship existed prior to death.

The court reviewed the law relating to assessing the truthfulness of a witnesses testimony and found the claimant’s testimony to be more trustworthy than the opposing family members.

The court followed the decision of Faryna v. Chorny (1952) 2 DLR 354 ( BCCA) at 357 stating that the proper approach to assess the truthfulness of any interested witnesses testimony is based on:

“ The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth.

The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions.

In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.”

The factors identified in Bradshaw v. Stenner 2010, BCSC 1398 when assessing whether the evidence of a witnesses, truthful, but also accurate are:

The capacity and opportunity of the witness to observe the events at issue;
his or her ability to remember those events;
the ability of the witness to resist being influenced by his or her interest in recalling those events;
the internal and external consistency of the witnesses evidence; did his or her testimony change between direct and cross examination; are there inconsistencies in between, prior statements, discovery evidence and his or her evidence at trial;
whether the witnesses evidence harmonizes with or is contradicted by other evidence, particularly independent or undisputed evidence;
whether his or her evidence seems unreasonable, improbable are unlikely, bearing in mind the probabilities affecting the case; and-the witnesses demeanor, meaning the way here she presents while testifying.

contested will Contesting a Will technical legal wills variation

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

B.C. Wills Variation Act unsigned will valid will WESA will variation