I had two enquiries today in which both questions posed were essentially – is this document, email, diary entry, hand written note, video deposition, alterations to a previous will and so forth, a will that can be remedied under S. 58 WESA, so as to be valid?
An unsigned will was found to be valid under section 58 WESA as representing the deceased persons fixed and final testamentary intentions that varied an earlier will in the decision Skopyk Estate 2017 BCSC 2335.
The application to cure the will, under the provisions of section 58 of the Wills Estates and Succession act was unopposed, and the order was granted.
The deceased had made a prior 1995 will that was found to be validly varied by the subsequent unsigned will that was not dated, but was in handwriting reasonably similar to the handwriting in a letter entered into evidence, that was signed by the deceased. That letter was found in a drawer in the deceased’s apartment next to the 1995 will.
The unsigned and undated document referred to the will dated November 16, 1995 and purported to change the distribution of the residue of the estate.
The court referred to S 37(1) of WESA that stated that in order for a will to be valid, it must be in writing, and signed at its end by the will maker, or the signature the end must be acknowledged by the will maker as his or hers, in the presence of two or more witnesses present at the same time, and signed by two or more witnesses in the presence of the will maker.
S 37(2) further provides that if the will does not comply with section 1, then it is invalid unless the court orders it to be effective as a will under section 58, known as the curing deficiency provision of WESA.
S. 58 WESA authorizes the court to order the document that is not comply with the requirements of section 37 be fully effective as though it had been made in compliance with those requirements.
To make such an order, the court must be satisfied that the document represents the testamentary intentions of the deceased.
The court followed the Court of Appeal decision in Re Hadley estate 2017 BCCA 311 that held that the document must be a deliberate or fixed and final expression of intention as to the disposal of property upon death.
Re-Lane estate 2015 BCSC 2162 held that extrinsic evidence of testamentary intent is admissible on the inquiry as to whether a noncompliant document and bodies a deceased intent. The extrinsic evidence of events might include events that occurred before, when and after the document was created.
The court found a number of relevant details that supported a finding that the unsigned and undated document represented such an expression of intention:
- It was pinned to a bulletin board in the apartment of the deceased where it could easily be found
- The distribution was rational and a previous beneficiary had died
- The document directed a division of the residue in certain specific shares with language that mirrored the language of the 1995 will
- Although it was not signed or witnessed the word witness was written near the bottom
- Although the document was not dated there was a reference at the top of the deceased will dated November 16, 1995, and it also corrected a typographical error in the 1995 will
- The handwriting was reasonably similar to handwriting in a letter entered into evidence
the day before heart surgery the deceased said that he had been working on his will, and that his wishes were different from that of the 1995 will