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Memory Stick Will Valid: S. 58 WESA

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

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

In the Rempel case none of the documents were signed or witnessed, but did reveal personal records, which were testamentary in nature.

The memory sticks had been located in the deceased’s computer found in his residence.

The first memory stick contained recordings, including a voice memorandum between the deceased and a notary dealing with various testamentary expressions.

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

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

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

58 (1) in this section, record includes data that:
a) is recorded or stored electronically,
b) can be read by a person, and
c) is capable of reproduction in a visible form

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

Section 3 goes on to provide that the court may, as the circumstances require, order that a record or document or writing or making on a will or document be fully effective as though it had been made

a) as the will or part of the will of the deceased person,
b)as a revocation, alteration or revival of a will of the deceased person, or
c) as the testamentary intention of the deceased person.

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

“The key question is whether the document records a deliberate or fixed and final expression of intention as to the disposal of the deceased property on death. A deliberate or fixed and final intention is not the equivalent of an irrevocable intention, given that a will, by its nature is revocable until the death of its maker. Rather, the intention must be fixed and final at the material time, which will vary depending on the circumstances.”

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