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Trevor Todd and Jackson Todd have in excess of 65 years combined experience in resolving estate disputes

 

In Hendrickson estate 2026 BCSC 1058 the court utilized S59 WESA to ” rectify” a draft mirror will prepared during Ms Hendrickson’s life and then rectify it by substituting her name for her former spouse who they had reconciled and vice versa throughout.

 

They met with a lawyer who made extensive notes showing that they considered each other to be spouses. Some further emails were exchanged with the lawyer and clients  and the lawyer then sent them draft wills After a further delay updated draft wills were provided and a meeting was asked to be set up to sign the wills.

 

The problem was that Ms Hendricks draft will named her spouse as the testator and Ms Hendrickson as the executor and residual beneficiary when the obvious intention for her will was the opposite. The drafting lawyer made an error in the drafting.

 

M. Hendrickson died before her will could be signed .The lawyers office at the request of the funeral home drafted a “post death draft” in a mirrored version with Ms. Hendrickson identified as the testator and her spouse designated as the executor and residual beneficiary.

 

The spouse then sought the post death draft to be declared as representing her last testamentary intentions and ordered to be effective as though it had been made in accordance with the terms of WESA.

 

The court initially looked at curing the unsigned will under S. 58 WESA but found that the “record, document or writing” made after death cannot be included within the scope of S.58 WESA despite S. 58 does not explicitly limit the records, documents or writings to those created during the testator’s lifetime.

The court stated there is no real difference between a court creating a will after death from what is known of the deceased’s testamentary intentions and a lawyer doing so and then asking for the court to bless the result, but part of the threshold under S 58 is whether the document is authentic. An authentic document must date to the life of the deceased.

 

The question therefore arose  whether the June Draft can be rectified, so that this is fixed. If it can, then it could be ordered effective without the legal obstacle I have identified for the Post-Death

. Section 59(1) states as follows:

On application for rectification of a will, the court, sitting as a court of construction or as a court of probate, may order that the will be rectified if the court determines that the will fails to carry out the will-maker’s intentions because of

(a) an error arising from an accidental slip or omission,

(b) a misunderstanding of the will-maker’s instructions, or

(c) a failure to carry out the will-maker’s instructions. [52] “Failure to carry out the will-maker’s instructions” need not mean a culpable failure.

In my view, this is a relatively easy case for rectification under s. 59(1)(c). The June Draft failed to carry out the will-maker’s intentions because of firm policy in the context of mirror wills still in development. This fits within the meaning of s. 59(1)(c). [53] With this rectification, I am persuaded that the June Draft is a document that represents the testamentary intentions of Ms. Henriksen

. Conclusion and Order

I have therefore declared that the June Draft, as modified in accordance with the detailed order on file, represents the testamentary intentions of Ms. Henriksen and should be made fully effective as though it had been made as her will.

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

 

 

 

 

Trevor Todd and Jackson Todd have over 65 years combined experience in handling wills variance cases.

 

There are surprisingly few reported decisions in BC relating to the outcome of disabled children, young and adult and Wols v Funk 2026 BCSC 404 is a good decision in favour of an adult disabled child of the deceased parent, MR. WOls.

 

His child and son Gerry Gerry, born in 1961, is currently 64 years of age. Gerry lives with multiple disabilities and   has never been capable of managing his own affairs or protecting his own legal or financial interests. Gerry has also never lived independently and lives with significant cognitive impairment.

Gerry has a formal diagnosis of global developmental delay, autism spectrum disorder and bipolar affective disorder. Gerry’s diagnoses collectively impact, without limitation, his ability to communicate, follow routines, and express basic needs such as hunger, thirst or discomfort. Gerry is no longer ambulatory and  requires a wheelchair.

He brought an action with the assistance of the Public Guardian and Trustee for a variation of his late father’s will.

 

Gerry lived in a community based assistance residence the previous 17 years of his father’s life. His mot predeceased and was bed ridden for many years due to several afflictions.

 

The value of the estate was $486,000 and the will provided as follwos:

 

Pursuant to the Will, George directed that the Estate be distributed as follows:

1. a)to provide Gerry with the lesser of $120,000 or one‑half of the residue of the Estate and to provide a single life annuity which would provide for a three‑year guarantee of payment for Gerry’s benefit during his lifetime; and
2. b)to divide the residue of the Estate equally between Mr. Funk and Mrs. Funk.

The specific bequest to Gerry amounts to approximately 25 percent of the Estate.

 

No reasons were stated for the distribution scheme of the will.

 

The defendant’s Funk were an elderly couple in their early 80’s and met the Wol family initially as a housecleaner and they became friends over the years.

Mr. Wols paid them $300 to further assist Gerry with activities and needs although the court found that the Funks did not have a particularly close relationship with Gerry.

 

The Court furthermore stated that since the Funk’s had been appointed the attorneys for George through a power of attorney they should not have been expected to be paid to assist with Gerry’s health.

 

THE LAW

The Funk’s argued at trial that the bequest to Gerry was sufficient to meet his needs and the will should not be varied.

Moral norms are the reasonable expectations of what a judicious parent would do in the circumstances by reference to contemporary community standards: see Tataryn at para. 28.

[69]         Legal and moral obligations owed by a deceased to his spouse or children are relevant to the determination of whether adequate provision in a will have been made. Alleged legal or moral obligations to other persons (whether they be siblings, other relatives or unrelated acquaintances of the deceased) do not qualify for consideration: see Tataryn at paras. 31‑32; Scurek v. Scurek, 2020 BCSC 450 at para. 144; and Geluch v. Geluch Estate, 2019 BCSC 2203 at paras. 166‑170.

[70]         Courts have generally not hesitated to recognize an enhanced moral obligation to a child with a disability relative to the moral obligation owned to an independent adult child, the latter of which has been described as “more tenuous”: see Tataryn at para. 31.

[71]         It is not an answer to a claim under s. 60 of WESA to assert that a deceased individual considered his or her testamentary intentions or that he or she had received advice and knew what they were doing where, on an objective basis, the court concludes that a deceased was not acting in accordance with society’s reasonable expectations of a judicious parent (or spouse). In those circumstances, a will should be varied accordingly: see Deutschmann v. Fallis, 2010 BCSC 2031 at para. 37 citing Clucas v. Clucas Estate (1999), 25 E.T.R. (2d) 175 at para. 12.

[72]         In Tataryn, McLachlin J. (as she was then) stated the foregoing this way at para. 17:

The other interest protected by the Act is testamentary autonomy. The Act did not remove the right of the legal owner of property to dispose of it upon death. Rather, it limited that right. The absolute testamentary autonomy of the 19th century was required to yield to the interests of spouses and children to the extent, and only to the extent, that this was necessary to provide the latter with what was “adequate, just and equitable in the circumstances.”  And if that testamentary autonomy must yield to what is “adequate, just and equitable”, then the ultimate question is, what is “adequate, just and equitable” in the circumstances judged by contemporary standards. Once that is established, it cannot be cut down on the ground that the testator did not want to provide what is “adequate, just and equitable”. [Emphasis in original.]

[73]         The relevant date for determining whether the will‑maker has made adequate provision for the proper maintenance and support is the date of death: see Bautista v. Gutkowski Estate, 2023 BCSC 1485 at para. 42 citing Eckford v. Vanderwood, 2014 BCCA 261 at para. 50.

[74]         What is just and equitable is not to be determined on a “needs‑based” test. The object of WESA is to ensure that a spouse or a child received an “adequate, just and equitable share” of the will‑maker’s estate even in the absence of demonstrated need. What constitutes adequate provision is a question that involves consideration of many factors and is not limited to what will provide the bare necessities for the plaintiff: see Tataryn at paras. 16, 19, 24.

[75]         In exercising its discretion under WESA, the court should not focus on the minimum required to provide a child with amenities over and above the basic level of care afforded by government funding. A will‑maker’s obligation is not satisfied or diminished by the availability of funding through government programs or agencies. Further, the courts must be cognizant of the reality that the availability of government or charitable funding is not guaranteed: see Barnsley v. Barnsley, (1996) 142 D.L.R. (4th) 335 (B.C.S.C.) at paras. 26‑28 and Newstead v. Newstead Estate, 1996 CarswellBC 262 (S.C.) at paras. 82‑85.

[76]         Finally, in Dunsdon v. Dunsdon, 2012 BCSC 1274 at para. 134, Justice Ballance set out a non‑exhaustive list of factors which inform the existence and strength of a parent’s moral obligation:

• relationship between the testator and claimant, including abandonment, neglect and estrangement by one or the other;
• size of the estate;
• contributions by the claimant;
• reasonably held expectations of the claimant;
• standard of living of the testator and claimant;
• gifts and benefits made by the testator outside the will;
• testator’s reasons for disinheriting;
• financial need and other personal circumstances, including disability, of the claimant;
• misconduct or poor character of the claimant; and
• competing claimants and other beneficiaries[.]

Caselaw Regarding Wills Variation: Specific Examples

[77]         The plaintiff directed the Court to two specific cases which it is submitted are somewhat factually analogous (albeit involving situation where there were multiple adult children of the deceased and not a sole adult child like Gerry).

[78]         The first is Deutschmann. In Deutschmann, the deceased‘s will provided his 64‑year‑old daughter who had a disability with a life estate in a basement suite in the former family home so that she would have the security of a residence for so long as she could maintain it. When the daughter was no longer able to maintain the home, the will directed that the property be sold and the proceeds divided among the deceased’s three other adult children to the exclusion of the disabled daughter. The daughter, who had moved into a group home, received government benefits and no other sources of income. The value of the estate was $500,000 (very close to the value of the Estate in issue here).

[79]         In deciding Deutschmann, Justice Voith considered the daughter’s claim as against the competing moral claims of the deceased’s other three adult children. In concluding that the deceased recognized his moral duty to his daughter but failed, by the terms of the will to discharge that duty, Voith J. made the following statements which are applicable here:

1. a)The needs based approached was rejected by the Supreme Court of Canada in Tatarynand therefore the fact that a claimant received government benefits is not a defence to a claim under WESA: see paras. 39‑40;
2. b)The fact that a claimant’s basic needs are addressed by the state does not determine a disabled child’s need for support from his/her parent: see para. 41; and
3. c)A will‑maker may have a moral obligation to make an increased or enhanced provision for a child with disabilities.

[80]         In the result, the plaintiff in Deutschmann was awarded an equal one‑quarter interest in the balance of the estate along with her three siblings: see para. 46.

[81]         The second decision is Barnsley. In Barnsley, Sarah, who had a disability, was one of four adult siblings. Somewhat unusually, Sarah had never been raised by the deceased (or her mother who was the second wife of the deceased). Instead, Sarah had been placed into foster care as an infant with the Fisher family and had remained living with the Fisher family throughout her childhood pursuant to a permanent guardianship order. (Sarah had aged out of care by the time of the litigation but still resided with and required the full‑time care of the Fisher family). Sarah was not adopted by the Fisher family as they were not in a financial position to do so as that would have terminated the benefits that the Fisher family received to support and care for Sarah.

[82]         In concluding that Sarah was entitled to a greater share of the deceased’s estate than that of her three siblings despite all having a moral claim on the estate, the Court recognized that there was an enhanced moral duty owed to Sarah, as a child with a disability, even though she was in receipt of government benefits.

[25]      Neither Sarah, nor any of her custodians or caregivers, ever did anything to justify the testator disinheriting her. The support from the state which Sarah receives is of a basic level. There are other goods and services which would be of benefit to her. These include speech language treatment and life skills training. There are numerous other expenditures which would promote her independence. It is unfortunate that Sarah has thus far received few of these “discretionary” benefits. I am of the view that she has a strong moral claim against her father’s estate for the future funding of such benefits.

[26]      There is, as well, the ongoing concern that Sarah’s present care funding is not guaranteed. It is subject to review and decree.

[27]      The testator’s other three children are of good health. They are financially independent. They were close to the testator. All received some advances from the testator during his lifetime. The testator’s two oldest children, in turn, financially assisted him when he was in need. The testator’s making provision for them in his will is just and equitable. The testator’s disinheritance of Sarah is not. The testator’s decision to disinherit Sarah fell below his obligations to her as defined by reference to moral norms. The application made on Sarah’s behalf must succeed.

[28]      All four of the testator’s children have a moral claim on his estate. At the time of the testator’s will and death, none of the four children were financially dependent on him. Although Sarah is supported by the state, that support is not guaranteed. Neither is the income or support enjoyed by the testator’s other three children. Nevertheless, an “adequate, just and equitable” order requires that Sarah receive more than the other three of the testator’s children. Sarah’s needs are greater. She did not receive the benefit of any advances during the testator’s lifetime.

 

Decision

The will was varied to give Geryy %80 of the residue of the estate:

 

To divide the balance of the capital and income of my Net Estate then remaining (hereinafter my “Residuary Estate”) and:

(1)            To pay or transfer eight (8) of those equal shares of my Residuary Estate to my son, Gerald David Wols;

(2)            To pay or transfer two (2) of those equal shares of my Residuary Estate equally to Mary Funk and Ewald Funk, or the survivor of them

 

 

 

 

 

 

Trevor Todd nd Jackson Todd have over sixty combined years in resolving estate disputes including marriage like relationships

Sharon Clark died without a will and had no children or surviving parents. Her only sibling, the appellant, challenges the trial judge’s finding that she and her former partner were spouses under the Wills, Estates and Successions Act, S.B.C. 2009, c. 13.

He argues the trial judge erred in failing to consider Ms. Clark’s subjective intentions and in finding there was a marriage-like relationship. The parties never cohabited as a couple.

Held: Appeal dismissed. Determining whether a relationship is marriage-like involves a fact-driven contextual analysis of all the evidence relevant to the various indicia of a spousal relationship. The trial judge did not err in considering the parties’ intentions or in her approach to assessing the indicia of a marriage-like relationship.

MS Clark died in 2020 at age 79. She had been in a relationship with Mr. Matossian for 38 years He died two years after Ms Clark. A court action was commenced that for an order that Clark and Mastossian were spouses under S 2(1)(b) of WESA. The trial judge agreed they were and the appeal court upheld that decision.

The parties never cohabited as man and wife but they spent a lot of time together and many witnesses testified as to same and there was a significant body of evidence such as photographs of them and travel documents together.

The two had separate finances and did not provide for each other in a will or through beneficiary  designations.

They discussed moving together early in their relationship but there wasn’t enough room in her apartment due to her hoarding

She spent most nights at his house ,had a parking stall there and a key to his house.

They had an exclusive sexual relationship and were considered by friends to be a couple. Their daily routines revolved around each other

The Law

• The generally accepted characteristics of a marriage-like relationship set out many decades ago in Molodowich v. Penttinen, 17 R.F.L. (2d) 376, 1980 CanLII 1537 (Ont. Dist. Ct.): shared shelter, sexual and personal behaviour, the provision of services, social activities, children, economic support and the social perception of the couple;
• A shorter list of five considerations or factors identified in the much more recent decision of Justice Matthews in McDowell v. Andrews, 2018 BCSC 2216 at para. 23; and
• The well-established approach to the factors and the evidence in determining whether a relationship is marriage-like.

Addressing this approach, the trial judge recognized that the factors are not to be treated as a checklist and the presence or absence of any particular factor is not determinative, based on leading authorities. Instead, each relationship must be assessed based on a contextual and holistic approach to the evidence, recognizing the diversity of spousal relationships and how they are structured: at para. 60 citing Austin v. Goerz, 2007 BCCA 586 at para. 58.

It is the intentions of the parties plural that is identified as a factor and, in Mother 1 v. Solus Trust Company Limited, 2021 BCCA 461, as a factor that must be considered in deciding whether a relationship was marriage-like. Mother 1 also provides a finding of mutual intention is not a prerequisite as explained in Weber. That explanation informs what I see as the requisite approach to considering the parties’ intentions:

[23]      The parties’ intentions – particularly the expectation that the relationship will be of lengthy, indeterminate duration – may be of importance in determining whether a relationship is “marriage-like”. While the court will consider the evidence expressly describing the parties’ intentions during the relationship, it will also test that evidence by considering whether the objective evidence is consonant with those intentions.

[24]      The question of whether a relationship is “marriage-like” will also typically depend on more than just their intentions. Objective evidence of the parties’ lifestyle and interactions will also provide direct guidance on the question of whether the relationship was “marriage-like”.

[30]         Similarly, Jones v. Davidson, 2022 BCCA 31, endorsed a contextual characterization of the relationship that may or may not include a party’s subjective intention. The Court opined, “subjective evidence, where there is evidence of such, may be tested by reference to the objective evidence”, which, in turn, may address a wide assortment of characteristics or indicia: Jones at para. 24 (emphasis added).

Trevor Todd and Jackson Todd have over sixty years combined experience in dealing with contested estate matters.

Lewis v Jack 2026 BCCA 18 concerned an appeal  concerning  the interpretation of a will and whether bequests to the beneficiaries vested at the date of the testator’s death or the date of the distribution of the residue. The will in question stated that the residue of the testator’s estate “then remaining” was to be divided to the beneficiaries (his children) “then alive”.

One of the beneficiaries died after the testator’s death but before the estate was distributed. The chambers judge determined the bequests did not vest until the residue was distributed, thus disinheriting that beneficiary. On appeal, the appellant contends the judge erred in interpreting the will by failing to properly apply the usual rule of vesting at the date of the testator’s death. Held:

The Appeal was  allowed on the basis that the will, read as a whole, demonstrates the testator’s intention to make provision for all his children who survived him. The words “then alive” are not sufficiently clear to impute an intention to vest the legacies in his will at the time the estate is finally distributed to the beneficiaries.

The Law

The general principles of will construction  require a court to interpret a will to give effect to the testator’s intention, having regard to the entire will, and assuming the testator intended the words in the will have their ordinary meaning unless a contrary intention is clearly expressed. Where the intention cannot be determined from the language of the document, the court may consider extrinsic evidence of the circumstances surrounding the making of the will: Dice Estate at paras. 36–37; Kirk Estate v. Coates, 2020 ABCA 233 at para. 7

There is a presumption of early vesting that has been present in the law for over 200 years. This means that a testamentary gift is presumed to vest on the death of the testator unless there is a clear intention to the contrary expressed in the will.

[31]         For example, in Cripps v. Wolcott, [1819] Ch. D.12, it was considered settled law that where a legacy is given to two or more persons in equal shares, the survivorship of a legatee is to be determined by reference to “the period of division”, and where no previous interest is given (as, for example, in a life interest), the period of division is the death of the testator. In Duffield v. Duffield, [1829] 4 Eng. Rep. 1334, a long-established rule for the guidance of the courts in construing wills was stated to be:

… that all estates are to be holden to be vested, except estates, in the devise of which a condition precedent to the vesting is so clearly expressed, that the Courts cannot treat them as vested, without deciding in direct opposition to the terms of the will. If there be the least doubt, advantage is to be taken of the circumstance occasioning that doubt; and what seems to make a condition, is holden to have only the effect of postponing the right of possession. This presumption applies where distribution of an estate is postponed, unless the gift is contingent on a condition personal to the legatee.

the rule applies whether the residue is gifted to named legatees or a class: Re Hooper at 513 and 517; Re Lauder at 530. The following statement from Halsbury’s Laws of England, 2nd ed, Vol. 34. (Toronto: Butterworth & Co. (Canada) Ltd., 1940), at 319, was referred to with approval by Cartwright J. in Re Hooper:

Whatever may be the time of distribution, where there is a gift to a testator’s next-of-kin, without more, the class prima facie has to be ascertained as at the testator’s death …

[37]         Finally, courts are not inclined to interpret a will in a way that effectively allows the executor to determine the date of vesting. This concern was expressed as early as 1807 in the case of Gaskell v. Harman, [1805] 32 Eng. Rep. 1177, where the Lord Chancellor stated at 1183:

… if a testator thinks proper, whether prudently or not, to say distinctly, shewing a manifest intention, that his legatees, pecuniary or residuary, shall not have the legacies, or the residue, unless they live to receive them in hard money, there is no rule against such intention, if clearly expressed. But that would open to so much inconvenience and fraud, that the Court is not in the habit of making conjectures in favour of such an intention…

… if the words will admit of not imputing to the testator such an intention, it shall not be imputed to him.

The appeal court found that the chambers judge erred in law by failing to have regard to the entire will in interpreting the meaning of clause 3(d) and, in doing so, interpreting clause 3(d) as a clear expression of intention sufficient to displace the presumption that a testamentary gift vests on the death of the testator.

When clause 3(d) is interpreted in the context of the will as a whole, the words “then alive” do not connote a contingent gift, nor do they clearly evince an intention to rebut the presumption of early vesting.

It is rare for a court to consider a vesting date that does not correspond to the date of the death of the testator or another person, or a fact personal to a legatee (such as attaining a certain age). The discretion granted to an executor and trustee to “sell, call in or convert” an estate and to pay debts and funeral expenses allows for the orderly disposition of the assets. This is a process that takes time, and any delay in liquidating or dividing up an estate does not prevent a gift from vesting at the testator’s death absent clear language.