A court in Australia has accepted an unsent, draft text message on a dead man’s mobile phone as an official will.
The 55-year-old man had composed a text message addressed to his brother, in which he gave “all that I have” to his brother and nephew.
The message was found in the drafts folder on the man’s phone after he took his own life last year.
Brisbane Supreme Court ruled that the wording of the text indicated that the man intended it to act as his will.
In the message, the man gave details of how to access his bank account and where he had hidden money in his house.
“Put my ashes in the back garden,” he wrote. “A bit of cash behind TV and a bit in the bank.”
According to ABC News, the man’s wife applied to manage his assets and argued that the text mess
age was not valid as a will because it was never sent.
Typically, for a will to be valid in Queensland, it must be written and signed by two witnesses.
Justice Susan Brown said the wording of the text message, which ended with the words “my will”, showed that the man intended it to act as his will.
“The reference to his house and superannuation and his specification that the applicant was to take her own things indicates he was aware of the nature and extent of his estate, which was relatively small,” she said.
She said the “informal nature” of the message did not stop it representing the man’s intentions, especially as it was “created on or about the time that the deceased was contemplating death, such that he even indicated where he wanted his ashes to be placed”.
Validity of Wills
In 2006, the law in Queensland was changed to allow less formal types of documents to be considered as a will.
Another unusual will accepted in Queensland includes a DVD marked with “my will”, in 2013.
Estate of Palmer 2017 BCSC 1430 dealt with an application to cure defects in a will under sections 58 and 59 of WESA, but was ordered to trial rather than having been dealt with summarily by affidavits.
Ms. Palmer executed a short will on August 18, 1988. By that document, she appointed Montreal Trust and her cousin, Emily Takats, as her executors and trustees. She also named Ms. Takats as the sole residual beneficiary of her estate. Ms. Takats died well before Ms. Palmer.
[5] Following her death, a copy of Pauline Palmer’s 1998 will was discovered bearing various handwritten alterations and initials. Some of the changes are in black ink and some in blue ink. The changes include:
• updating Ms. Palmer’s address;
• deleting Montreal Trust and Emily Takats as executors and trustees and substituting in their place “Alan Homeniuk (sic), 10 English Way, St. Albert, Alberta”; and
• deleting the name Emily Takats as a residual beneficiary.
[6] The operative words of the will containing the handwritten changes now read as follows:
• “I nominate, constitute and appoint Alan Homeniuk of 10 English way, St. Albert, Alberta, and my cousin [name deleted], presently of [city deleted] to be the executors and trustees of this my Will”;
• “To deliver the rest and residue of my estate unto my said cousin [name deleted] for his [changed from “her”] own use and benefit absolutely.”
WESA and the Determination of Testamentary Intentions
[27] The recent case of Estate of Young, 2015 BCSC 182, describes the legal framework applicable to s. 58 of WESA and the curing of “deficiencies” related to the making or alteration of a will. The history and intent of the legislation, including the case law in other jurisdictions addressing similar provisions, is set out in paras. 16–33 of that decision and will not be repeated here. The law is summarized in paras. 34–37 of the decision and can be paraphrased as follows:
• the courts’ curative power with respect to non-compliant testamentary documents is inevitably and intensely fact-sensitive;
• the first threshold issue is whether the document in question is authentic;
• the second, and core, issue is whether the non-compliant document represents the deceased’s testamentary intentions;
• a testamentary intention means much more than the expression of how a person would like his or her property to be disposed of after death. Rather, the document must record a deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death;
• the burden of proof that a non-compliant document embodies the deceased’s testamentary intentions is the balance of probabilities;
• factors relevant to establishing the existence of a fixed and final testamentary intention 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; and
• generally speaking, the further a document departs from the formal validity requirements of the legislation, the harder it may be for the court to find that it embodies the deceased’s testamentary intention.
[28] Both s. 58 and 59 of WESA provide for an “application” to court to determine whether a certain document represents the testamentary intentions of a deceased person and/or rectification is warranted because the will fails to implement the deceased’s intent.
[29] Rules 2-1(2)(b) and (2.1) of the Supreme Court Civil Rules provide for the initiation of proceedings in estate matters or in respect of any application authorized by statute to be made to the court. It is possible that the manner in which the present application has been brought does not properly comply with those rules but, in any event, there is no doubt that a chambers hearing is ultimately contemplated thereby triggering the application of Rule 22-1, including the following sub-rules:
Evidence on an application
(4) On a chambers proceeding, evidence must be given by affidavit, but the court may
(a) order the attendance for cross-examination of the person who swore or affirmed the affidavit, either before the court or before another person as the court directs,
(b) order the examination of a party or witness, either before the court or before another person as the court directs,
(c) give directions required for the discovery, inspection or production of a document or copy of that document,
(d) order an inquiry, assessment or accounting under Rule 18-1, and
(e) receive other forms of evidence.
…
Power of the court
(7) Without limiting subrule (4), on the hearing of a chambers proceeding, the court may
(a) grant or refuse the relief claimed in whole or in part, or dispose of any question arising on the chambers proceeding,
(b) adjourn the chambers proceeding from time to time, either to a particular date or generally, and when the chambers proceeding is adjourned generally a party of record may set it down on 3 days’ notice for further hearing,
(c) obtain the assistance of one or more experts, in which case Rule 11-5 applies, and
(d) order a trial of the chambers proceeding, either generally or on an issue, and order pleadings to be filed and, in that event, give directions for the conduct of the trial and of pre-trial proceedings and for the disposition of the chambers proceeding.
[30] I have attempted to explain above why the affidavit evidence tendered on this application respecting certain matters is insufficient to do justice to the testamentary intentions of Ms. Palmer. In my view, oral evidence from the three affiants is desirable including cross-examination of those affiants on certain aspects of their testimony. As well, evidence must be adduced respecting Ms. Palmer’s physical and mental health and, in particular, her testamentary capacity at the time the changes to her will were made.
[31] Furthermore, three of the potential beneficiaries under WESA have not been included in the proceedings to date. It appears that Ms. Perret has no interest in actively participating in the present proceeding, however the court is not satisfied that any meaningful effort has been invested by any of the parties in tracing and notifying each of Bradley Palmer, Grant Palmer and Dolores Palmer. Their legal interests are at stake in this proceeding and they cannot simply be ignored.
[32] Rule 22-1(7)(d) permits the court to order a trial of any chambers proceeding and to give directions respecting the filing of pleadings and the further conduct of the matter. The legal test for converting a chambers proceeding into a trial was recently reviewed by the Court of Appeal in British Columbia (Milk Marketing Board) v. Saputo Products Canada G.P., 2017 BCCA 247. It is akin to the test applicable for summary judgment under Rule 9-6, i.e., whether a bona fide triable issue arises on the evidence before the court which warrants determination at a trial. The threshold is relatively low in that regard.
Decision and Orders Made
[33] In my view, there is a bona fide triable issue between the parties whether the handwritten amendments to Ms. Palmer’s will record a fixed and final expression of intention to make Mr. Homeniuk the sole beneficiary of her estate, an issue which cannot be satisfactorily resolved based solely on the affidavit evidence adduced to date. Accordingly, I make the following orders:
1. the within chambers proceeding will proceed to a trial;
Re Riguidel Estate 2017 BCSC 1667 found a signed but unwitnessed will to be valid by invoking the curative provisions of Section 58 WESA.
The Facts:
The people present when the deceased signed the handwritten and typed documents were the deceased, Ms. Leonard and Mr. Kapinus. The deceased was present when Ms. Leonard and Mr. Kapinus signed their names as witnesses to the deceased’s signature.
[28] Mr. Kapinus also states that he was unaware that two witnesses were required. He used the same language as Ms. Leonard did in her Affidavit, where he swore:
16. The Deceased appeared confident about signing the Will. He did not hesitate. I asked him if the Will was exactly what he wanted and he advised me that it was.
17. At no time did I observe anyone pressuring the Deceased to change his Will or to make any specific gift.
18. The Deceased and I discussed the Will and it was clear that it reflected his final wishes. The Will is consistent with my prior discussions with the Deceased.
19. I have no reason to believe that the Will is not an accurate reflection of the Deceased’s final wishes. I observed no evidence that the Deceased was forced or compelled to distribute his estate in the manner set out in the Will. The Deceased appeared to be thinking clearly at the time. He was not confused and he understood what he was doing.
[29] The most compelling evidence is that of Donna Malley, the deceased’s daughter. She states that when she learned of her father’s cancer diagnosis in January 2016. She travelled to Kamloops in order to be with him, arriving on or about February 11, 2016. She swears to the following:
3. I have learned that prior to my arrival on February 11, 2016, my father signed a document to vary his will (the “Codicil”), a true copy of which is attached hereto as Exhibit “A”.
(Exhibit A is the typewritten document prepared by Mr. Kapinus).
[30] Ms. Malley also swears the following:
4. On or about February 13, 2016, I had a conversation with my father, at which time he advised me that it was important to him that my sister, Debi, was to obtain the house that he owned after he died, as she had done so much for him.
5. Debi and her husband, Vince, lived with my parents for many years and contributed to the construction and upkeep of the house.
6. It is my understanding and belief that after my mother died, my father realized that he did not have enough money to pay his mortgage. In or about early November 2015, I was present during a conversation between my sister Debi Riguidel, Vince Kapinus, and my father in which Debi and Vince told my dad not to worry that they would pay his mortgage and bills and ensure that he would always be taken care of financially.
[31] In her Affidavit, Ms. Malley sets out her understanding as to why her sister and Mr. Kapinus were to receive the house, and describing their relationship as a “trusting and loyal friendship”, and that it is “his way of saying that he will always take care of them in the same way that they did for him”. She further swears:
11. I believe that my father intended to provide Debi and Vince with his house in part because both my sister, Kimberly, and I have houses of our own and we did not live with my parents as adults.
12. I am confident that the February 11, 2016, Codicil prepared by my father and attached hereto as Exhibit “A” is a true and accurate reflection of my father’s wishes.
The Law
[34] In Young Estate (Re), 2015 BCSC 182, Madam Justice Dickson, as she then was, described some of the factors that should be present when seeking a non-compliant document to represent the deceased’s person’s intention under the curative provisions of s. 58(3) of WESA. In determining the deceased’s final testamentary intentions, Madam Justice Dickson wrote:
[36] The burden of proof that a non-compliant document embodies the deceased’s testamentary intentions is a balance of probabilities. A wide range of factors may be relevant to establishing their existence in a particular case. Although context specific, these factors 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: Sawatzky at para. 21; Kuszak at para. 7; Martineau at para. 21.
[37] While imperfect or even non-compliance with formal testamentary requirements may be overcome by application of a sufficiently broad curative provision, the further a document departs from the formal requirements the harder it may be for the court to find it embodies the deceased’s testamentary intention: George at para. 81.
[35] The curative provisions of s. 58(3) of the WESA are fact sensitive.
[36] Extrinsic evidence is permitted in order to determine whether the non-compliant document is the deceased’s final expression, as to his or her testamentary intentions pursuant to s. 58(3) of WESA: Litke Estate (Re), 2017 BCSC 1079 at para. 39.
[37] It comes down to this – whether the document presented was prepared by the deceased and that its contents represent a “deliberate or fixed and final testamentary intention at the material time for the disposition of the estate: Litke Estate (Re) at para. 42.
Discussion
[38] I am satisfied, on the evidence, that the documents dated February 7, 2016, copies of which are in Appendix 1 to these reasons, are the deliberate expressions of the deceased’s wishes as to the disposition of his property upon his death.
[39] I also find that the handwritten document signed by the deceased and the witnesses, Ms. Leonard and Mr. Kapinus, in the deceased’s presence was to record and confirm that the typewritten document set out the terms of the handwritten document, which reflected the deceased’s intentions before the deceased signed the typewritten document.
[40] It is clear from all of the evidence that the deceased recognized a moral, if not a legal obligation, to his daughter and son-in-law for their contributions to his estate.
[41] I determine that the typewritten document dated February 7, 2016 represents and embodies the deceased’s testamentary intentions sufficient to alter his Will as to the disposition of the assets of his estate and is effective as part of the Will
Estate of Palmer 2017 BCSC 1430 dealt with an application by affidavits pursuant to Sections 58 and 59 WESA to cure deficiencies in a will left by a deceased who hand wrote certain changes to a typed and properly witnessed prior will.
The Judge referred the matter to the trial list under a rule 22-1-(7) (d) finding that there was a triable issue, particularly concerning her competence.
WESA and the Determination of Testamentary Intentions
[27] The recent case of Estate of Young, 2015 BCSC 182, describes the legal framework applicable to s. 58 of WESA and the curing of “deficiencies” related to the making or alteration of a will. The history and intent of the legislation, including the case law in other jurisdictions addressing similar provisions, is set out in paras. 16–33 of that decision and will not be repeated here. The law is summarized in paras. 34–37 of the decision and can be paraphrased as follows:
the courts’ curative power with respect to non-compliant testamentary documents is inevitably and intensely fact-sensitive;
the first threshold issue is whether the document in question is authentic;
the second, and core, issue is whether the non-compliant document represents the deceased’s testamentary intentions;
a testamentary intention means much more than the expression of how a person would like his or her property to be disposed of after death. Rather, the document must record a deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death;
the burden of proof that a non-compliant document embodies the deceased’s testamentary intentions is the balance of probabilities;
factors relevant to establishing the existence of a fixed and final testamentary intention 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; and
generally speaking, the further a document departs from the formal validity requirements of the legislation, the harder it may be for the court to find that it embodies the deceased’s testamentary intention.
[28] Both s. 58 and 59 of WESA provide for an “application” to court to determine whether a certain document represents the testamentary intentions of a deceased person and/or rectification is warranted because the will fails to implement the deceased’s intent.
[29] Rules 2-1(2)(b) and (2.1) of the Supreme Court Civil Rules provide for the initiation of proceedings in estate matters or in respect of any application authorized by statute to be made to the court. It is possible that the manner in which the present application has been brought does not properly comply with those rules but, in any event, there is no doubt that a chambers hearing is ultimately contemplated thereby triggering the application of Rule 22-1, including the following sub-rules:
Evidence on an application
(4) On a chambers proceeding, evidence must be given by affidavit, but the court may
(a) order the attendance for cross-examination of the person who swore or affirmed the affidavit, either before the court or before another person as the court directs,
(b) order the examination of a party or witness, either before the court or before another person as the court directs,
(c) give directions required for the discovery, inspection or production of a document or copy of that document,
(d) order an inquiry, assessment or accounting under Rule 18-1, and
(e) receive other forms of evidence.
…
Power of the court
(7) Without limiting subrule (4), on the hearing of a chambers proceeding, the court may
(a) grant or refuse the relief claimed in whole or in part, or dispose of any question arising on the chambers proceeding,
(b) adjourn the chambers proceeding from time to time, either to a particular date or generally, and when the chambers proceeding is adjourned generally a party of record may set it down on 3 days’ notice for further hearing,
(c) obtain the assistance of one or more experts, in which case Rule 11-5 applies, and
(d) order a trial of the chambers proceeding, either generally or on an issue, and order pleadings to be filed and, in that event, give directions for the conduct of the trial and of pre-trial proceedings and for the disposition of the chambers proceeding.
In British Columbia, Jerry Lewis’s six disinherited children would have a wills variation claim under Section 60 of WESA.
The news today reported:
When comedian Jerry Lewis died from heart failure in August at the age of 91, as it turns out, he left the majority of his estranged children nothing — and rather proudly.
People obtained his last will and testament, and discovered that Lewis cut out all six of his children with his first wife Patti Palmer, who are therefore set to inherit nothing.
The will, which was executed in 2012, reads: “I have intentionally excluded Gary Lewis, Ronald Lewis, Anthony Joseph Lewis, Christopher Joseph Lewis, Scott Anthony Lewis, and Joseph Christopher Lewis and their descendants as beneficiaries of my estate, it being my intention that they shall receive no benefits hereunder.”
Lewis and Palmer were married for 36 years from 1944 to 1980. Their sixth child, Joseph, mentioned above, actually died of a drug overdose in 2009.
However, Lewis remarried in 1983, to Las Vegas dancer SanDee Pitnick. As his widow, Lewis’s estate will likely be passed down to Pitnick. Second in line to inherit is Lewis’s remaining child, 25-year-old daughter Danielle, whom he adopted with Pitnick and who was also working as Lewis’s manager up until his death.
Re: Hadley Estate 2017 BCCA 311 the BC Appeal court upheld the principle of costs in estate litigation where the litigation is necessary due to the conduct of the deceased, then each party will normally be entitled to have their legal fees paid for from the estate as special costs. In Hadley the document in question was found not to be a will but it was reasonable for the parties to ask the court for a determination as to whether or not the document was a will:
What costs order should be made on the appeal?
[47] In estate litigation, courts commonly award special costs payable out of the estate to all parties. This practice is based on the principle that where an estate issue must be litigated to remove any doubts, all interested parties must be joined and all are entitled to be heard. In such circumstances, they should not be out of pocket if, in the result, the litigation does not conclude in their favour. The central question as to costs is whether the contested issue arises from the conduct of the deceased or the conduct of another. In the case of the former, an award of special costs from the estate will usually be made: Milwarde-Yates v. Sipila, 2009 BCSC 277 at paras. 81–82.
[48] The judge awarded special costs payable out of the estate to all parties. Her costs award has not been challenged and, in my view, the same costs award is appropriate on appeal. All parties to the appeal were drawn into the litigation because Ms. Hadley wrote the 2014 Will and provided it to Ms. McDermott for safe-keeping. The appeal concerned its validity and legal implications and, while ultimately unsuccessful, was not brought unreasonably
Re Hadley Estate 2017 BCCA 311 was upheld by the Court of appeal in finding that a rambling journal was not a will that could be “cured” by S 58 WESA.
This was the first appeal court decision on Section 58 WESA.
Section 58 of the WESA
[33] British Columbia was a “strict compliance” jurisdiction prior to passage of the WESA. Under s. 4 of the Wills Act, R.S.B.C. 1996, c. 489, testators were obliged to comply strictly with execution and attestation formalities for creating a will for it to be valid. The same was true for revoking, altering or reviving a will: Wills Act, ss. 14, 17, 18. These formal requirements sometimes led to a will-maker’s testamentary intentions being defeated for no good reason. As a result, the British Columbia Law Institute recommended the introduction of a dispensing power to relieve against the consequences of non-compliance with testamentary formalities as part of a general reform of wills and estate administration law: BCLI, Wills, Estates and Succession: A Modern Legal Framework (BCLI Report No. 45, June 2006) at xiv.
[34] Section 58 of the WESA is the legislative response to the BCLI recommendation. Remedial in nature, it confers a broad discretion on the court to order that a “record or document or writing or marking on a will or document” be fully effective, despite non-compliance with the statutory requirements. Although s. 58 cannot be used to uphold a will that is substantively invalid, it permits the court to cure issues of formal invalidity in prescribed circumstances:
Court order curing deficiencies
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 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.
…
[35] For an order to be granted under s. 58 of the WESA, the court must be satisfied that a document represents the testamentary intentions of the deceased person. However, unlike the curative provisions in some provinces, s. 58 does not require a minimum level of execution or other formality for a testamentary document to be found fully effective. Regardless of its form, if the court grants an order under s. 58(3), the document may be admitted to probate.
[36] As discussed in Estate of Young, s. 58 is very similar to Manitoba’s curative provision and thus the leading appellate authority on its meaning is George v. Daily. George and several other Manitoba authorities are reviewed in Estate of Young, which review need not be repeated. Their import is summarized at paras. 34–37:
[34] As is apparent from the foregoing, a determination of whether to exercise the court’s curative power with respect to a non-compliant document is inevitably and intensely fact-sensitive. Two principal issues for consideration emerge from the post-1995 Manitoba authorities. The first in an obvious threshold issue: is the document authentic? The second, and core, issue is whether the non-compliant document represents the deceased’s testamentary intentions, as that concept was explained in George.
[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 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.
[36] The burden of proof that a non-compliant document embodies the deceased’s testamentary intentions is a balance of probabilities. A wide range of factors may be relevant to establishing their existence in a particular case. Although context specific, these factors 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: Sawatzky at para. 21; Kuszak at para. 7; Martineau at para. 21.
[37] While imperfect or even non-compliance with formal testamentary requirements may be overcome by application of a sufficiently broad curative provision, the further a document departs from the formal requirements the harder it may be for the court to find it embodies the deceased’s testamentary intention: George at para. 81.
The Material Time
[37] In many cases, as here, the material time for determining testamentary intentions on a s. 58 application is the time when the document in question was created. However, as noted in Estate of Young, depending on the circumstances, the material time may vary on this key issue. For example, after creating a document, a will-maker may, by words or actions, manifest a fixed and final intention that it expresses how his or her property is to be disposed of on death and thus that it operates as a will. In other words, a document may acquire a testamentary character by subsequent and sufficient manifestation of the will-maker’s intention: Bennett et al. v. Toronto General Trusts Corporation, [1958] S.C.R. 392 at 397. Nevertheless, in most cases, the focus of inquiry will be the will-maker’s intention when the document was prepared and executed: see, for example, Sweeney Cunningham Estate v. Sweeney, 2013 NSSC 299 at para. 29; Komonen v. Fong, 2011 NSSC 315 at para. 23.
The Scope of Admissible Extrinsic Evidence
[38] The WESA does not indicate what evidence is admissible on a s. 58 inquiry. Accordingly, the ordinary rules of admissibility apply.
[39] Ordinarily, evidence must be relevant to a live issue and not be subject to exclusion under any other rule of law or policy to be admissible: Sidney N. Lederman, Alan W. Bryant and Michelle K. Fuerst, The Law of Evidence in Canada 4th ed. (Markham: LexisNexis Canada Inc., 2014) at §2.40. Relevance must, therefore, be assessed on a case-by-case basis. Mr. Justice Rothstein affirmed the meaning of “relevance” in R. v. White, 2011 SCC 13:
36 … In order for evidence to satisfy the standard of relevance, it must have “some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than that proposition would be in the absence of that evidence” [citations omitted].
37 … to say that an item of evidence is not relevant; that it is not probative of a live issue; or that it is “equally explained by” or “equally consistent with” either determination of a live issue are three ways of saying the same thing.
[40] Sitting as a court of probate, the court’s task on a s. 58 inquiry is to determine, on a balance of probabilities, whether a non-compliant document embodies the deceased’s testamentary intentions at whatever time is material. The task is inherently challenging because the person best able to speak to these intentions – the deceased – is not available to testify. In addition, by their nature, the sorts of documents being assessed will likely not have been created with legal assistance. Given this context and subject to the ordinary rules of evidence, the court will benefit from learning as much as possible about all that could illuminate the deceased’s state of mind, understanding and intention regarding the document. Accordingly, extrinsic evidence of testamentary intent is admissible on the inquiry: Langseth Estate v. Gardiner (1990), 75 D.L.R. (4th) 25 at 33 (Man. C.A.); Yaremkewich Estate (Re) at para. 32; George. As is apparent from the case authorities, this may well include extrinsic evidence of events that occurred before, when and after the document was created: see, for example, Bennett; George; Estate of Young; Re MacLennan Estate (1986), 22 E.T.R. 22 at 33 (Ont. Surr. Ct.); Caule v. Brophy (1993), 50 E.T.R. 122 at paras. 37–44 (Nfld. S.C.).
The Judge’s Treatment of the Evidence
[41] The judge conducted her s. 58 inquiry in a thorough, careful, transparent manner. She considered the words and form of the 2014 Will in detail, together with the large and varied body of extrinsic evidence of events that occurred before, when and after it was made. The focus of her analysis was Ms. Hadley’s intention when she wrote the 2014 Will, which was the material time for s. 58 purposes. On balance, she concluded that it did not represent a deliberate and final expression of Ms. Hadley’s testamentary intentions, which conclusion, though not inevitable, was reasonably available on the evidence as a whole.
[42] In her reasons, the judge listed or had previously noted virtually all of the factors characterized by the appellants as genuinely probative of the central issue. However, after balancing those factors with others to contrary effect, she simply was not persuaded by their arguments or the validity of their position. I see no error in the manner in which she reached this conclusion or in her interpretation of the evidence and its overall import.
[43] Contrary to the appellants’ submission, the evidence the judge relied upon to support her conclusion was relevant to Ms. Hadley’s testamentary intentions when the 2014 Will was written. While not necessarily dispositive, each item of impugned evidence tended to increase the likelihood that the 2014 Will did not express her final intentions for the disposal of her property on death. For example, although she was not obliged to leave bequests to her nieces, she had previously done so in the 2008 Will and an explanation for the change and some form of express revocation might reasonably have been expected, but both were absent: see McNeil v. Snidor Estate, 2008 MBQB 187 at paras. 21, 23. As a matter of logic and human experience, their absence tended to make it more likely that the 2014 Will did not express Ms. Hadley’s final intentions than it would have been if there was evidence of either or both.
Section 58 WESA was once again successfully used in Re Litke Estate 2017 BCSC 1079 to find a hand written unwitnessed signed “will-like” document to be a valid will.
Such documents are now routinely found valid by the courts if certain criteria are met. The application in Re Litke was not even opposed.
STATUTE, CASELAW AND DISCUSSION
17 Part 4 of the WESA provides:
Part 4 — Wills
Division 1 — Making a Will
Who can make a will
36 (1) A person who is 16 years of age or older and who is mentally capable of doing so may make a will.
(2) A will made by a person under 16 years of age is not valid.
How to make a valid will
37 (1) To be valid, a will must be
(a) in writing,
(b) signed at its end by the will-maker, or the signature at the end must be acknowledged by the will-maker as his or hers, in the presence of 2 or more witnesses present at the same time, and
(c) signed by 2 or more of the witnesses in the presence of the will-maker.
(2) A will that does not comply with subsection (1) is invalid unless
(a) the court orders it to be effective as a will under section 58 [court order curing deficiencies],
(b) it is a will recognized as valid under section 80 [validity of wills made in accordance with other laws], or
(c) it is valid under another provision of this Act.
18 Section 58 of Part 4 provides:
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 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.
Case Review
19 The decision of Dixon J. in Estate of Young, 2015 BCSC 182 [Young], was the first case to consider the WESA, which came into force in British Columbia on March 31, 2014, apparently modelled after similar legislation in Manitoba.
20 At para 16, Dickson J. noted that the enactment of c. 13 represented “a significant change in wills and estate administration law in the province”, with s. 58 “one of the WESA’s most far-reaching remedial provisions.” She noted that “It marks a departure from the traditional principles of formalism that previously governed the creation, alteration and revocation of wills in British Columbia.”
21 At para. 17, Dickson J. noted:
[17] Section 58 of the WESA is a curative provision. It confers a discretion on the court to relieve against the consequences of non-compliance with testamentary formalities in the “record, document or writing or marking on a will or document”. In prescribed circumstances, s. 58 permits the court to address and cure issues of formal invalidity in such documents. It cannot, however, be used to uphold a will that is invalid for substandard reasons such as testamentary incapacity or undue influence.
22 At para. 24, Justice Dickson referred to George v. Daily (1997), 143 D.L.R. (4th) 273 (Man. C.A.). As noted by Dickson J. at para. 26, Philp J.A. at paras. 62 and 65 of the Manitoba decision, stated the following on “the limits placed on the court’s curative powers”:
Not every expression made by a person, whether made orally or in writing, respecting the disposition of his/her property on death embodies his/her testamentary intentions . . .
The term “testamentary intention” means much more than a person’s expression of how he would like his/her property to be disposed of after death. The essential quality of the term is that there must be a deliberate or fixed and final expression of intention as to the disposal of his/her property on death [citations omitted].
23 At para. 35 of Young, Dickson J noted:
[35] . . . A deliberate or fixed and final intention is not the equivalent of an irrevocable attention, 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.
24 At para. 27, Dickson J. noted the following:
[27] In Kuszak v. Smoley, [1986] M.J. No. 670 (Q.B.), a partially-printed and partially-handwritten document signed by the deceased but not witnessed was found to reflect the deceased’s testamentary intentions. The court relied on several factors in making this determination, including:
(1) the document was in the deceased handwriting;
(2) the document was signed by the deceased in four places;
(3) the date was in four places;
(4) the printed portion identified the document as a will and was properly filled out; and
(5) there was nothing before the Court refuting the conclusion that the document embodied the deceased’s intentions.
In these circumstances, the handwritten document was validated pursuant to s. 23 of the WA.
25 After a further review of cases at paras. 28 to 33, Justice Dickson came to the following conclusion at paras. 34 to 37:
[34] As is apparent from the foregoing, a determination of whether to exercise the court’s curative power with respect to a non-compliant document is inevitably and intensely fact-sensitive. Two principal issues for consideration emerge from the post-1995 Manitoba authorities. The first in an obvious threshold issue: is the document authentic? The second, and core, issue is whether the non-compliant document represents the deceased’s testamentary intentions, as that concept was explained in George.
[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 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.
[36] The burden of proof that a non-compliant document embodies the deceased’s testamentary intentions is a balance of probabilities. A wide range of factors may be relevant to establishing their existence in a particular case. Although context specific, these factors 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: Sawatzky at para. 21; Kuszak at para. 7; Martineau at para. 21.
[37] While imperfect or even non-compliance with formal testamentary requirements may be overcome by application of a sufficiently broad curative provision, the further a document departs from the formal requirements the harder it may be for the court to find it embodies the deceased’s testamentary intention: George at para. 81.
27 In Yaremkewich, the deceased left documents that failed to comply with the formal execution requirements of the WESA. She purported to appoint her niece, the applicant, as one of the executors. The other executor renounced her co-executorship. The estate property, listed in a Statement of Assets, Liabilities, and Distribution provided by the applicant, included her “principal residence, various banking and investment accounts, her motor vehicle, and some insurance benefits. The only liabilities of the estate [were] relatively small fees, many of which [had] already been paid. . . . [T]he value of the estate [was] approximately $545,000.” [Para. 3.]
28 As in this case, the application was not opposed in Yaremkewich.
29 In Yaremkewich, the deceased had been diagnosed with cancer. Her health continued to decline in the months preceding her death. She took multiple medications (as noted at para. 7) including “hydromorphone (a form of morphine) and Ativan”. As in this case, the evidence did not indicate her medical condition or whether medications seriously affected her mental abilities at the time she drafted the will. In the case at bar, there is no evidence the deceased was ill at the time or taking medications that could have affected her mentation at the time she signed the will-like document.
30 The deceased executed a pre-printed will template form titled “Last Will and Testament”. The document purported to revoke all her former wills, codicils and testimony dispositions, although Watchuk J. noted there was no evidence of any prior will to revoke.
31 The deceased had appointed two persons as executors; one of them who had stepped aside.
32 As noted at para 13, “The original of the pre-printed will was kept in an unsealed envelope first opened on July 7, 2014 after [the deceased’s] death”. The words, “Will of [the deceased]”, were written in what her executor, who the court found seemed to have a strong relationship with the deceased, believed was the deceased’s handwriting.
33 The “Will” appointed executors, set out burial arrangements, and directed payment of certain taxes and expenses to be paid out of the estate. As in this case, it provided “a number of gifts, that included money bequests”. It provided for “a five-way division of the proceeds of [the deceased]’s house” and included with the document was a 12-page, stapled, handwritten list of bequests, organized by beneficiary and type of gift for the 19 beneficiaries which included nieces, nephews, stepsons, extended family and friends. [Para. 15.]
34 A third document entitled “Charitable Bequests” was a one-page, handwritten list of charitable bequests that purported to distribute the “remaining money from [the] estate”. Justice Watchuk noted the list appears to have been stapled to the personal bequests list but, at some point, became loose in the envelope containing the Will template.
35 Justice Watchuk noted many of the gifts were of a highly personal nature.
36 Although “[t]he Will was signed by two witnesses” (para. 19), Justice Watchuk noted that both the purported witnesses recalled the Will they signed was a blank template with no attached pages setting up bequests. They further believed that the deceased had not signed the Will before they signed and they “[did] not specifically recollect” whether she signed the Will the same time as them.
37 Justice Watchuk found it impossible to determine exactly when the deceased executed the Will. She concluded it was likely that the deceased had completed all the various documents referred to at the same time and shortly after the witnesses signed the Will.
38 Justice Watchuk was satisfied the Will did not conform with the formalities of the WESA as the deceased had not signed or acknowledged her signature in the presence of at least two witnesses, present at the same time and signed in the presence of the will maker. It was accordingly clear the form was not validly witnessed as required by the WESA.
The general rule that extrinsic evidence is not admissible in construing a will (the function of a court of construction) does not apply to the probate court whose duty is to determine whether a document is a valid will. Extrinsic evidence is admissible on the question of testamentary intent, and the Court is not limited to the evidence that an inspection of the document provides.
40 Justice Watchuk found (at para. 56) “that the two bequests lists enclosed in the envelope [that contained the Will template] also represented the testamentary intention of the deceased and [were] therefore part of the Will”, noting that “[e]ach of the documents in substance contemplate[d] gifts on her death and in that sense were testamentary in nature.” At para. 57, Watchuk J. found it “obvious that [the deceased had] spent a great deal of time considering which gifts to give to each beneficiary . . . [and] that this represented her carefully-considered testamentary intentions”. Her observations with respect to the charitable bequests were of a similar nature. She found one of the documents found the made provision for care of the deceased’s dog after her death was not a testamentary intention as it did not contain funeral instructions for her for disposition of her property and death. As such that document, she concluded, did not have testamentary status and was now within the curative power of s. 58. She found, however, that the Will, the personal bequest list and the charitable bequest list included in the envelope containing the Will were fully effective as the deceased’s Will pursuant to s. 58 of the WESA.
41 It is apparent from the cases that the analysis that s. 58 engages is heavily fact-based. The circumstances in which a will-like document could be prepared are infinite.
42 As I read the section and the cases, the basic questions are whether the document presented is a valid document prepared by the deceased and that its contents represent a deliberate or fixed and final testamentary intention at the material time for the disposition of the estate.
A testamentary document is like a will because the will is the most common form of that type of document. A will is a document that has its vigor and effect upon a death. In other words, a will is an invalid document until a death. It’s an important document but it’s not the type of document that you can take to the bank and borrow against until the actual death occurs and you can prove that you are a beneficiary.
Now, what’s the significance? Some documents look testamentary but may not be. While other documents do not necessarily look testamentary but might be. The legal test is whether the document requires its vigor and effect to be a death in order for the document to come into force and effect. The significance is is that if it is a testamentary document, then it must be signed in accordance with the Wills Act which requires two witnesses and the presence of the person signing the document all in the presence of each other. If it’s not validly witnessed in the court in such as that, then the document might not be valid. The article shows cases where the document is testamentary and cases where the document is found not to be testamentary.
This video is about how to keep wills variation out of court which is basically what most testators want to do at the end of the day. The video and article is a very in-depth review of what the requirements are with respect to executing valid wills and dealing with various wills issues that arise in a state litigation such as ambiguities or missing pages or all sorts of problems that can arise. As I said, a very detailed examination of very, very many wills issues that can arise in a state litigation.
