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Court Can Cure Formal Defects In a Will

Cure for willsCourt Can Cure Formal Defects In a Will After April 1, 2014

Sections 58 and 59 of WESA are clearly the most significant differences between the former legislations and the new legislation to be brought into effect on March 31, 2014. These two sections basically allow the court to cure defects in a will and to rectify an error in a valid will and allow it to carry out the will maker’s intentions.

The clear intent of the legislation is to allow the court to focus on what was the testator’s intent rather than on technical deficiencies to the execution of the will.

Much will be written about and litigated for many years concerning these two sections.

Todays blog will include a copy of section 58, that allows the Court to cure deficiencies, with a few comments.

Court order curing deficiencies

58 (I) 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.

The first paragraph defining “record”to enable electronic wills, which are undoubtedly noncompliant by definition, but can still be accepted for probate by the court under section 58 by virtue of the new definition of “record”.

The court has in effect changed the law after hundreds of years of being relatively “strict compliance”re-the execution of wills, to now about more of an “imperfect compliance”, that can be remedied by the court in its search for what was the true intention of the testator.

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