Trevor Todd and Jackson Todd have over 60 years combined experience in handling the estate disputes, including interpreting purported wills and utilizing section 58 WESA.

 

In Reid estate 2024 BCSC 1932 the court refused to cure a hand written note written by the deceased, and held that it did not represent the last testamentary intentions of the deceased.

Section 58 applications are very fact determinative

The deceased was a longtime chronic alcoholic, and the evidence was that she would often call people in the middle of the night and ramble on in slurred speech.

 

The court found that the document was not proven to be on the balance of probabilities to be the fixed and final testamentary of the intentions of the deceased due to the following finding of facts:

 

1. The document did not refer to itself as a will, but instead started with the words” I smell death”. The evidence was that she would use these types of words in her late night drunken phone calls;

 

2. The date of the document was unclear as it was undated;

 

3. The document was found to be incomplete in several aspects;

 

4. There was a contradictory instruction as to the disposition of her remains. She wrote about internment and then wrote she wanted her ashes scattered, which are inconsistent with each other;

 

5. The court questioned why she took a wills questionnaire form with her to the hospital, as opposed to simply not writing another handwritten document to support the allegation that she intended this to be a last testamentary document;

 

6. The document was unwitnessed;

 

7. She died at age 56, of liver failure due to severe alcoholism;

 

8. She was asked if she had prepared a will and she replied that she had not done so and that she was thinking about leaving her estate to all her nieces and nephews, rather than the individual niece, the petitioner, with whom she was close, and who owned property as tenants-in-common with the deceased;

 

Section 58 is remedial legislation that confers on the court a broad discretion to order a document purporting to be a will be fully effective, despite non-compliance with formal requirements. For an order to be granted under s. 58, the court must be satisfied the document represents the testamentary intentions of the deceased: Hadley Estate (Re), 2017 BCCA 311 at paras. 34 to 35.

        In deciding whether to exercise this curative power, Justice Dickson in Hadley Estate referenced her earlier decision in Estate of Young, 2015 BCSC 182:

     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:

      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.

      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.

     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.

     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 for determining testamentary intentions on a s. 58 application is usually the time at which 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: Hadley Estate at para. 36. Extrinsic evidence of testamentary intent may be admissible, including evidence of events that occurred before, during, and after the document was created: Hadley Estate at para. 40.

         The onus is on the petitioner seeking to cure a non-compliant document to prove on a balance of probabilities that the document is authentic and that it represents the deceased’s testamentary intentions. Testamentary intention means a deliberate or fixed and final expression of intention of disposal of the deceased’s property on death. The material time for determining testamentary intentions is usually at the time when the document was created.