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Defendants on occasion are tardy in filing a response to a Notice of Civil Claim and default judgment is taken out against  the defendant.

 

The decision of De Thomas Family Holdings Ltd v Glen Valley Cannabis Ltd discusses the issue of what is required by the court to consider setting aside a default judgment.

Setting Aside a Default Judgment

[62]         Rule 3-8(11) of the Rules provides that the Court may set aside or vary a judgment entered against a defendant who has failed to file a response to a civil claim. The Rules’ discretion must be exercised in accordance with the interests of justice: 1163499 B.C. Ltd. v Holm, 2026 BCCA 270 at paras 8, 19 [Holm].

[63]         The considerations traditionally relevant to that determination were identified in Miracle Feeds v D. & H. Enterprises Ltd. (1979), 10 BCLR 58 at p 61 (BC Co. Ct.) [Miracle Feeds] and are summarized in Holm at para 8. They are:

1. a) whether the defendant wilfully or deliberately failed to file a response;
2. b) whether the defendant applied to set aside the judgment as soon as reasonably possible after learning of it, or has provided an explanation for any delay; and
3. c) whether the defendant has a meritorious defence or, at least, a defence worthy of investigation.

[64]         The applicant bears the burden of demonstrating that the interests of justice favour setting aside the judgment. The Miracle Feeds considerations are neither mandatory nor exhaustive and are not discrete preconditions, each of which must be satisfied. Their weight depends upon the circumstances: Holm at paras 8, 19, 23-29; Forgotten Treasures International Inc. v Lloyd’s Underwriters, 2020 BCCA 341 at para 17 [Forgotten Treasures]. I do not accept Ceridwen’s submission insofar as it would require an applicant who deliberately defaulted and delayed seeking relief to establish fraud or a shocking and unconscionable result as a separate prerequisite. Those adverse circumstances carry substantial weight, but the governing inquiry remains whether the interests of justice favour relief.

[65]         The threshold for establishing a defence worthy of investigation is low. The applicant must point to some evidence showing that the proposed defence could succeed; the applicant need not establish that it will succeed. At this stage, the Court does not decide the merits through a searching, extended, or detailed weighing of the evidence: Holm at paras 26-28; Forgotten Treasures at paras 26-30.

[66]         A proposed defence may satisfy this threshold even if it would defeat only part of the plaintiff’s claim, including by reducing the damages recoverable. The applicant must provide some evidence that the defence could succeed; its ultimate merits are not determined on this application: Holm at paras 27-28.

[67]         The Court may consider any other circumstance relevant to the interests of justice, including practical problems that maintaining the judgment may create for the assessment of damages: Holm at paras 14, 19. Alleged prejudice from reopening must be supported by evidence: Holm at paras 29-30.

[68]         The ultimate inquiry is therefore contextual. The Court must weigh the defendant’s explanation and conduct, the timing of the application, the evidentiary foundation for and potential validity of the proposed defence, any demonstrated prejudice, and all other circumstances relevant to whether justice is better served by maintaining the judgment or permitting the dispute to be determined on its merits

 

If a default judgment remains in place, the plaintiff must nevertheless prove the damages recoverable under that judgment through admissible evidence: McIsaac v Healthy Body Services Inc., 2009 BCSC 1716 at para 44; Besic v Kerenyi, 2011 BCSC 1277 at para 53.

[77]         Rules 3-8(12) and (13) provide for assessment at trial and permit the Court to give directions respecting the conduct of the assessment. Under Rule 3-8(12)(b), an assessment set for trial is ordinarily heard together with the action or issues involving the remaining defendants unless the Court otherwise orders.

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Trevor Todd and Jackson Todd have over 60 years combined experience in handling estate disputes.

 

Barnes – Morrison v Kolias  2026 BCSC 1834 reviewed the law in BC relating to amending pleadings.

 

Rule 8-1(1) of the Rules provides that pleadings may be amended after service of a notice of trial only with leave of the court. The significance of the leave requirement is highlighted in the Appeal Reasons.

[31]      As a starting point regarding the principles governing the amendment of pleadings is the helpful summary by the Court in 1305788 B.C. Ltd. v Sodhi Dream Homes Ltd., 2023 BCSC 445:

[27]      Justice Kent helpfully summarized the principles governing amendments to pleadings in Thomas v. Rio Tinto Alcan Inc., 2019 BCSC 107:

[18]      Some of the basic principles governing applications for leave to amend pleadings have been summarized in Continental Steel Ltd. v. CTL Steel Ltd., 2014 BCSC 104 at para. 26 and in British Columbia (Director of Civil Forfeiture) v. Violette, 2015 BCSC 1372 at para. 41 [citations deleted]:

1. the court has a wide discretion to permit amendments so as to enable the real issues between the parties to be determined;
2. the discretion to permit amendments is unfettered, subject only to the general rule that it be exercised judicially;
3. the overriding consideration is the interests of justice generally and to direct what is just and convenient between the parties;
4. while useless amendments that do not advance a reasonable cause of action or defence are to be avoided, justice is generally best served by permitting amendments that will allow the real controversy between the parties to be decided on the merits;
5. amendments may not be allowed if they will cause actual and meaningful prejudice to the opposing party––mere potential prejudice is insufficient. Rather the party resisting an amendment must prove actual and significant prejudice;
6. additional considerations include any delays in applying for the amendment, the reasons for such delay and whether deliberate or voluntarily dilatory conduct is involved, particularly when a new cause of action is proposed to be added that would otherwise preclude the operations of a limitation defence;
7. costs are the general means of protecting against prejudice unless it would be a wholly inadequate remedy; and
8. courts should only disallow an amendment as a last resort.

[28]      More guidance was provided as to the factors that should be considered in applications to amend pleadings by Madam Justice Ross in Dawe v. B.C. Children’s Hospital, 2003 BCSC 443 at para. 17 (quoted in Kwikwetlem First Nation v. British Columbia (Attorney General), 2021 BCCA 311 at para. 166):

(a) amendments should be permitted as are necessary to determine the real question in issue between the parties

The basic rule, set out expressly in the former Rules and no doubt still applicable, is that such amendments should be permitted as are necessary to determine the real question in issue between the parties. Rule 1(5) requires an interpretation of the rules which permit the just and speedy determination of the dispute on its merits. Similarly, the Law and Equity Act, R.S.B.C. 1979, c. 224, s. 10, requires the court to grant all such remedies as any of the parties may appear to be entitled to “so that, as far as possible, all matters in controversy between the parties may be completely and finally determined”. Victoria Grey Metro Trust Co. v. Fort Gary Trust Co. (1982) 1982 CanLII 227 (BC SC), 30 B.C.L.R. (2d) 45 (S.C.);

(b) the court will not give its sanction to amendments which violate the rules that govern pleadings, including the prohibition of pleadings which disclose no reasonable claim. In considering this question, the court will apply the same tests and considerations as applicable on an application to strike claims already pleaded, see Victoria Grey Metro Trust Co. supra;

(c) a party is not required to adduce evidence in support of a pleading before trial, see McNaughton v. Baker (1988), 1988 CanLII 3036 (BC CA), 25 B.C.L.R. (2d) 17 (B.C.C.A.);

(d) on an application to amend the facts alleged are taken as established, see Canada (Attorney General) v. Ellis-Don Ltd., 2000 BCCA 111 (CanLII), [2000] B.C.J. No. 492;

(e) the discretion is to be exercised judicially, in accordance with the evidence adduced and the guidelines of the authorities. Factors to be considered include: the extent of delay, the reasons for delay, any explanation put forward to account for the delay, the degree of prejudice caused by the delay, the extent of the connection between the existing claims and a proposed new cause of action. The over-riding consideration is what is just and convenient, see Teal Cedar Products (1977) Ltd. v. Dale Intermediaries Ltd. (1996), 1996 CanLII 3033 (BC CA), 19 B.C.L.R. (3d) 282 (C.A.).

[29]      What is clear from the authorities is that while useless amendments that disclose no reasonable cause of action must be avoided, the overriding principle is that generally amendments should be permitted in the interests of justice, to allow the real questions in issue between the parties to be litigated. Further, a party asserting that it will suffer prejudice due to the amendments must demonstrate actual and significant prejudice.

[32]      As indicated above, in the oft-cited decision of Victoria Grey Metro Trust Co. v. Fort Gary Trust Co., 30 B.C.L.R. (2d) 45,1982 CanLII 227 at para. 2(S.C.), Justice McLachlin (as she then was) confirmed that “consistency demands” that applications to amend pleadings be resolved under the same principles as applications to strike existing pleadings.

[33]      A fulsome review of these principles is found in Sahyoun v. Ho, 2015 BCSC 392:

[56]      This aspect of the defendants’ application is based on the difficulties with and inadequacy of the Amended Pleading. Such matters are best addressed through R. 9-5(1). The defendants’ R. 22-7(2) application, which allows a court to dismiss a proceeding for non­compliance with the Rules, is in a sense, derivative of and rests on their R. 9-5(1) application. Both applications are focused on the ongoing failure of Dr. and Mrs. Sahyoun to file a pleading that complies with the Rules. Accordingly, I have focused on the R. 9-5(1) application. That rule provides:

(1) At any stage of a proceeding, the court may order to be struck out or amended the whole or any part of a pleading, petition or other document on the ground that

(a)   it discloses no reasonable claim or defence, as the case may be,

(b)   it is unnecessary, scandalous, frivolous or vexatious,

(c)   it may prejudice, embarrass or delay the fair trial or hearing of the proceeding, or

(d)   it is otherwise an abuse of the process of the court, and the court may pronounce judgment or order the proceeding to be stayed or dismissed and may order the costs of the application to be paid as special costs.

[57]      The test on an application to strike an action under R. 9-5(1)(a), on the basis the pleadings do not disclose a cause of action, is whether it is plain and obvious the claim cannot succeed. It requires a conclusion that, assuming that the facts as stated are true, those facts disclose no cause of action and the pleadings disclose no arguable issue. If there is a chance that the action may succeed, then the action should be allowed to proceed; Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959 at 980; Thompson v. Webber, 2010 BCCA 308 at para. 11; Canadian Bar Assn. v. British Columbia, 2008 BCCA 92 at para. 37.

[58]      The test for striking a pleading under R. 9-5(1)(b), on the basis that it is unnecessary, scandalous, frivolous or vexatious, was recently summarized in Willow v. Chong, 2013 BCSC 1083, where Fisher J. said:

[20]      Under Rule 9-5(1)(b), a pleading is unnecessary or vexatious if it does not go to establishing the plaintiff’s cause of action, if it does not advance any claim known in law, where it is obvious that an action cannot succeed, or where it would serve no useful purpose and would be a waste of the court’s time and public resources: Citizens for Foreign Aid Reform Inc. v Canadian Jewish Congress, 1999 CanLII 5860 (BC SC), [1999] BCJ No. 2160 (SC); Skender v Farley, 2007 BCCA 629. If a pleading is so confusing that it is difficult to understand what is pleaded, it may also be unnecessary, frivolous or vexatious.

An “embarrassing” pleading, as contemplated by R. 9‑5(1)(c), is one that is so irrelevant that to allow it to stand would involve useless expense and would also prejudice the trial of the action by involving the parties in a dispute apart from the issues; Keddie v. Dumas Hotels Ltd. (1985), 1985 CanLII 417 (BC CA), 62 B.C.L.R. 145 at 147 (C.A.).

The abuse of process standard under R. 9‑5(1)(d) derives from a flexible doctrine. It allows the court to prevent a claim from proceeding where to do so would violate principles of judicial economy, consistency, finality and the integrity of the administration of justice; Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 at paras. 35‑37.

Though subsections (a)‑(d) of R. 9‑5(1) address different concerns and different wrongs, there is also some overlap between these subsections. Thus, for example, a pleading that discloses no cause of action, contrary to R. 9-5(1)(a), can also be unnecessary, frivolous or vexatious within the meaning of R. 9-5(1)(b); see e.g. Virk v. Brar, 2012 BCSC 1004 at paras. 69‑70.

A pleading can be embarrassing if it does not state the real issue in an intelligible form. It can also be embarrassing if it is prolix, includes irrelevant facts, argument or evidence. It can be prejudicial if it is designed to or has the effect of confusing the defendant, making it difficult, if not impossible, to answer; Virk at para. 75.

 

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