Divorcee Lacks Standing to Contest Deceased Former Husband’s Will

Divorcee Lacks Standing to Contest Deceased Former Husband's Will

In Carswell v Engle Estate 2018 BCCA 164 the Court of Appeal confirmed that a divorced widow did not have legal standing to apply to vary her former deceased spouse’s will and challenge its validity. The court held that she was clearly not a spouse entitled to challenge the will on any basis by reason of the divorce.

The appellant and the deceased married in 1987 and divorced in 1993. Prior to the marriage the applicant signed a marriage agreement detailing the parties respective interests in the matrimonial home. Previous litigation in 2014, found that the marriage agreement created an express trust in favor of the appellant of one half of the sale proceeds of the former matrimonial home.

When the deceased died he left his property to his second wife.

The appellant commenced court action seeking a variation of his will, and to contest the validity of the will.

Both the trial judge and the Court of Appeal found that the appellant had no legal standing to seek to vary the will because she did not meet the definition of spouse under WESA by reason of the divorce. The court also found that she lacked legal standing to challenge the validity of the will. The divorce orders were not successfully appealed and were valid.

The court also found that the limitation period to contest the will had expired.

Unsigned and Undated Will Valid (S.58 WESA)

Unsigned and Undated Will Valid (S.58 WESA)

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.

Legal Principles

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

Defective Will “Cured” S. 58 WESA

Defective Will "Cured" S. 58 WESA

S. 58 of WESA (Wills, Succession and Estates act) once again came to play to cure an otherwise  defective will in Re Smith Estate 2016 BCSC 350.

Once again the leading case in BC to date of re Young estate 2015 BCSC 182 was followed.

The facts:

The deceased and her husband lived together in a common law relationship for about 35 years until they married in 2012 .

The  applicant was the deceased’s granddaughter who as a child was very close to the deceased and lived with her for period of time.

The applicant remained very involved with the deceased as an adult.

The deceased advised that she had  drafted three documents and signed them having  asked the applicant if she would be the executor of her will and she agreed.

After the death of the deceased, the applicant searched for any testamentary documents in all places she thought they might reasonably be found including  funeral box .

The applicant found a clipped and stapled together copy of a 2008 document, an original 2011 document, and an original “funeral arrangements” document. ( three in total)

The  applicant brought applications for determinations that two handwritten records represented the  testamentary intentions of deceased, and were fully effective as though they had been made as or part of her will; and for orders and declarations setting out results of these determinations as well as orders dispensing with service of notice of application on particular beneficiaries, and her special costs .

The Court granted the orders.

The law:

17      Turning to the applicable law, WESA came into force on March 31, 2014. Among other things, section 58 permits the court to allow a document to be fully effective as though it had been made as a will, where the court determines the document represents a deceased’s testamentary intentions. Before WESA, documents that failed to strictly comply with the formal requirements of the Wills Act, R.S.B.C. 1996, c. 489 regarding the making, signing, and witnessing of a will were invalid.

18      Section 58 was first considered in Young Estate, Re, 2015 BCSC 182 (B.C. S.C.). Madam Justice Dickson observed the provision is curative, providing the court with a discretion in prescribed circumstances to relieve against the consequences of non-compliance with testamentary formalities. It cannot however be used to uphold a will that is invalid for substantial reasons such as testamentary incapacity or undue influence. Her decision relied upon the principles set out in George v. Daily (1997), 143 D.L.R. (4th) 273 (Man. C.A.) which dealt with similar provisions in the Manitoba Wills Act.

19      At paragraph 35, Dickson J. described the approach to an application under s. 58 of WESA as follows:

… (t) he key question is whether the document records a deliberate or fixed and final expression of intention as to the disposal of the deceased’s 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.

20      She concluded the factors relevant to determining whether a document embodies the deceased’s testamentary intention are context-specific and may include the presence of the deceased’s signature, the deceased’s handwriting, witness signatures, revocation of previous wills, funeral arrangements, specific bequests, and the title of the document.

Discussion and analysis:

21      During the hearing the applicant quite properly raised an issue about the validity of the gift to her set out in the 2011 document suggesting it may be construed as creating an unenforceable gift-over. I agree entirely with her further submission, however, that it is not the role of the court on an application pursuant to s. 58 to determine the validity of the instrument per se including the validity of the gifts it sets out. To the extent this approach may have been taken in Beck Estate, Re, 2015 BCSC 676 (B.C. S.C.), I decline, respectfully, to follow that decision.

22      Turning to the application of s. 58 to the facts of this case, the applicant recognizes the handwriting in the documents as that of the deceased. In any event, it is clear to me the handwriting matches known samples of her handwriting. Accordingly, I find the documents are authentic.

23      In this case, the factors relevant to determining whether each of the documents records a deliberate or fixed and final expression of the deceased’s intention regarding disposal of her property on death include:

  • The presence of her signature indicating her approval of the content of each document.
  • The titles she gave to each of the documents.
  • The content of the documents:

The first sets out and distributes a long list of clearly identified personal items to many specific beneficiaries on the event of her death and,

The second, includes a specific distribution of her real property, again, on the event of her death.

  • Both documents are expressed in language that conveys an air of finality.
  • The deceased met with Mr. Smith to discuss her will and presented him with both of these documents along with a third regarding funeral arrangements. She advised him she had drafted them herself and signed the first two. Her husband was also present for that meeting.
  • She subsequently met with the applicant and expressly asked her if she would agree to be her executor which she did. She advised the applicant that all of the necessary documents would be found in a funeral box she had prepared.
  • After the death of the deceased, the applicant then found a copy of the 2008 document, the original 2011 document and the funeral arrangements document in that funeral box. No other documents setting out a testamentary intention were ever located despite a diligent search.

24      After weighing all of these factors, I find on the balance of probabilities that the 2008 and 2011 documents represent the deliberate and final expressions of the deceased’s testamentary intentions. I therefore grant the orders sought by the applicant.

25      Pursuant to Rule 25-14(8)(i), I grant a further order dispensing with the requirement to serve the beneficiaries of the gifts set out in the 2008 document with notice of the application. I am satisfied that most of these gifts have already been distributed. As described in the document, they appear to involve personal items with little monetary value, and the beneficiaries would not have an entitlement upon an intestacy.

26      The applicant shall have special costs.