In re Hubschi Estate 2019 BCSC 2040 found a message on the deceased’s computer that the court “cured” and found to be a valid will.
Specifically, the court found that the electronic Microsoft Word document found in the deceased password – protected personal computer after his death, is the last will of Mr.Hubschi.
The case did not appear to be opposed but the Judge thoroughly reviewed the law under S.58 WESA.
The computer message will is stated as follows:
“ Get a will made out at some point.A5-way assets split for remaining brother and sisters. Greg, Annette or Trevor as executor.”
As the document was cured by the court, the deceased’s assets were to be distributed to the foster siblings who he grew up with in accordance with the intention set out in the document.
Had the document not been cured, he would have died intestate, and his assets would have been distributed in accordance with S.23 WESA to blood relatives in Switzerland with whom he had no relationship.
The deceased was given up at birth and at age 3, placed in a foster home in which he grew up with the five siblings whom the court divided his estate equally.
He died without any children, nor did he marry.
The Law
Section 58 of WESA allows the court to make an order that a “record, document or writing or marking on a will or document” represents the testamentary intentions of the deceased person, even though the making of the will does not comply with WESA.
The court may, as the circumstances require, order that a record or document or writing or marking on a will to be fully effective as though it had been made as part of the deceased will.
The court needs to be satisfied on the balance of probabilities that the record represents the full and final testamentary intentions of the deceased and can be saved by section 58. WESA.
The court extensively quoted the Court of Appeal decision In re Hadley Estate 2017 BCCA 311 .
Under section 58 WESA there is no minimum level of execution or other formality for a testamentary document to be found fully effective ( Hadley estate at paragraph 35). If the court grants an order under section 58(3) a document may be admitted to probate, regardless of its form.
The party seeking an order under section 58(3) must demonstrate on the balance of probabilities, that:
1) The testamentary document is authentic;
2) the testamentary document contains the full, final and fixed intention of the will maker
The case law has established that the 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 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.
A very 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 such matters as the deceased’s signature, the deceased’s handwriting, witness signatures, revocation of previous wills, funeral arrangements, specific bequests, and the title of the document.
In re Bailey estate 2016 BCSC 1226 and unsigned draft will was found not to represent the deceased fixed and final testamentary intentions.
The draft had been drawn up by her lawyer based on her instructions, but there had been several back-and-forth drafts leading up to that draft. Despite several reminders from the lawyer the deceased never confirmed nor signed the will. The court accepted evidence that the deceased had said she needed to set up an appointment “to complete “the draft will.
The court said that that statement taken at its best, indicates she wanted to replace her 2008 will with the new will, and that the statement could have meant she had changes to make, but that she intended on signing the draft as it stood. The deceased had also not revoked her previous will.
The court concluded the draft will was not the deceased fixed and final testamentary intention, and the application under section 58(3) was denied.
