Re Levesque Estate 2019 BCSC 927 dealt with a dispute where a portion of the deceased’s will was obscured with “whiteout”, resulting in the legal question of whether the words that were obscured by “whiteout” are deleted from the will, or still form part of the will.
After reviewing the facts and the law, the court concluded that the whiteout, referred to as the alteration, was a deliberate or fixed and final expression of the deceased’s intention to remove Mrs. Nixon, her granddaughter, from the will.
Giving effect to the deceased expressed intention, the court therefore found it appropriate to order that the alteration be made effective pursuant to section 58(3) WESA.
These cases are very fact dependent and the court, carefully reviewed the history of the interactions between the deceased and her immediate family, and in particular in Levesque and the granddaughter contesting the will, and the history of possession of the original will.
Alterations to a will are discussed in section 54.WESA.
Essentially, it requires that an alteration made after the will was executed must be signed of the wills maker whose signature must be witnessed by two witnesses, and each other’s presence and in the presence of the maker. These requirements may be avoided:
a) under section 54(4) (a) if the alteration is not substantial;
b) under section 54 (3) (a) if the alteration has made a word or provision illegible; or
c) under section 54(3) (b) if the alteration is made effective by an order pursuant to section 58.
The alteration in this case dealing with the white out of the beneficiary is substantial and accordingly S54 did not apply.
The courts followed a line of cases stating that to make a word or provision illegible, the words or provision in question must be impossible to read by ordinary inspection of the document, without chemical or other analysis. Re Springay Estate 1991 BCJ 984.
The court then recited the provisions of section 58 of WESA that allows a court to in effect cure deficiencies in a will, and followed the decision of Estate of Young, 2015 BC SC 182 which was approved by the Court of Appeal.
George v Daily (1997) 143 (4th) 273 was again followed by the BC courts at paragraph 35 “ in George the court confirmed that testamentary intention means much more than the expression of how a person would like his or her property to be disposed of after death. The key question is whether the document records a deliberate or fixed and final expression of intention as to this 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.
The burden of proof for the noncompliant document embodies the deceased testamentary intentions is a balance of probabilities. A wide range of factors may be relevant to establish in their existence in the particular case.
The court in Levesque found that the deceased, carefully dabbed whiteout over a provision in question, and did so undoubtedly with the considered in deliberate act on her part. She was applying the whiteout to the original will. It was not a casual act. The only reasonable inferences that are intention was to remove the provision from the will.