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Improperly Witnessed Will Cured Under s.58 WESA

improperly witnessed willsYaremkewich Estate Re 2015 BCSC 1124 is another in a series of largely uncontested applications to cure defects such as improperly witnessed wills under section 58 of WESA, that the court has allowed.

While the matter was uncontested, the Justice  gave very detailed reasons for judgment for her legal reasoning in curing a defectively witnessed will under the curative provisions of section 58 of WESA, due to its relatively new introduction on March 31, 2014.

The British Columbia courts continue to follow the lead of the Manitoba courts and particular their Court of Appeal decision of George v. Daily ( 1997) 143 (4th) 273 ( Man.C.A), as well as our BC court decision  Estate of Young, 2015BCSC 182, which I previously blogged and can be found by typing in the name of that case with its citation.

In this particular case the judge found as a fact that the two witnesses to the will testified they signed as witnesses to a blank will template, that had no attached pages setting out bequests as was found with the will after death. They could not recall if the deceased signed the will at the same time as them.

Prior to WESA, for hundreds of years that will would have been invalid in most of the common-law jurisdictions but for recent introductions of legislation to allow a judge to cure legal technicality and declare  a will valid, where the intentions of the deceased are clear.

The judge followed section 58 (3) (a) which empowers the court to order that a document or other record is fully effective as the will of the deceased person if the court is satisfied that the document represents the testamentary intentions of that deceased person.

The types of evidence that are relevant to prove testamentary intent will vary from case to case. In this particular case, the deceased left detailed wording of the will and its 12 pages of attachments, all of which were found in an envelope entitled with the name of the deceased and declaring it to be her last will. She also gave a copy of the last will to an executor, without the attached 12 pages of specific bequests that the judge found was likely signed by the deceased on a date after the witnesses signed the blank template.

 The Formal Requirements for a Valid Will

[25]         The formal requirements for a will are set out in s. 37 of WESA:

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.

[26]         On the evidence, I am satisfied that the Will does not comply with the formalities of WESA.  The effect of sections 37(1)(b) and (c) is that Ms. Yaremkewich had to sign or acknowledge her signature in the presence at least two witnesses who were present at the same time and signed in the presence of the will-maker.  In the circumstances, it is clear that the will form was not validly witnessed as required by WESA.

[27]         These requirements are strict, and the court does not have the discretion to waive the witnessing requirements: Bolton v. Tartaglia, 2000 BCSC 576 at paras. 18–19, citing Ellis v. Turner (1997), 43 B.C.L.R. (3d) 283 (C.A.). 

[28]         Mr. and Mrs. Bespalko, the witnesses to the Will, provided uncontradicted evidence that when they signed the Will, it was still a blank template document and had not been signed by Mrs. Yaremkewich.  Accordingly, I find that the contents of the executed will were added after the will template was signed by the witnesses.  Although it is not clear whether Ms. Yaremkewich signed the form at that time, even if she had, she would not be signing at the end of the will since the will template was blank at that time.  Therefore, Ms. Yaremkewich’s will was not validly witnessed in accordance with WESA, ss. 37(1)(b) and (c).

[29]         WESA, which came into effect on March 31, 2014, contains a new provision in s. 58 that even if a document fails to comply with the formalities of the statute, a court may nonetheless order that the document is fully effective as if it had complied with the statute.  The provision reads as follows:

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.

      (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.

[30]         Accordingly, s. 58(3)(a) empowers the court to order that a document or other record is fully effective as the will of a deceased person if the court is satisfied that the document represents the testamentary intentions of that deceased person.

Evidence

[31]         As a preliminary matter, the statements that Ms. Yaremkewich made to the various affiants and the other evidence of her intention in the affidavits are admissible evidence in this case.

[32]         The approach to evidence under Manitoba’s Wills Act, R.S.M. 1988, c. W-150 was summarized by Philp, J.A. in Langseth Estate v. Gardiner (1990), 75 D.L.R. (4th) 25 at 33 (Man. C.A.)

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.

Testamentary Intent

[33]         The s. 58 curative provision was well summarized in Estate of Young, 2015 BCSC 182 [Young].  This provision is one of WESA’s “most far-reaching remedial provisions”, and it represents a marked departure from the traditional, formalistic approach to the creation of wills (at para. 16).  It confers the court with a broad discretion to treat a testamentary record as valid even if it does not comply with the formalities of the statute.  However, this provision can only be used to cure errors concerning formalities, and cannot cure substantive errors such as testamentary incapacity or undue influence (at para. 17).

[34]         To apply s. 58, the applicant must prove on the balance of probabilities that the record at issue is authentic and that it represents the testamentary intentions of the will-maker: Young at paras. 19, 36; and Bunn Estate (Re) (1992) 100 Sask. R. 231 at 237 (C.A.) [Bunn Estate].  This analysis asks whether the court is satisfied that the document records the will-maker’s deliberate or fixed and final expression of intention as to the disposal of her property upon death.  This was summarized in Young as follows:

[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.

[35]         In several other provinces, the legislation that governs wills has a similar curative provision that allows the court to remedy formal defects if it is satisfied that the document represents that deceased’s testamentary intent.  The leading case on Manitoba’s curative provision is George v. Daily (1997), 143 D.L.R. (4th) 273 (Man. C.A.).  In that case, the deceased advised his accountant that he wanted to change his existing will.  The accountant made notes and wrote to the deceased’s lawyer detailing the deceased’s instructions.  The deceased met with the lawyer and confirmed his instructions.  Based on the lawyer’s instructions, rather than writing a new will during that meeting, the deceased agreed to get a medical certificate proving his competency before he executed a new will.  The testator died soon afterwards without having gotten the medical certificate or executed a new will.

[36]         Ultimately, the Manitoba Court of Appeal in George held that the letter to the lawyer did not represent a fixed and final expression of his intention as to the disposal of his property upon his death (at 291, 294–295).  There was no evidence that the deceased had seen the letter or affirmed its contents, and the court was not satisfied that the deceased intended for the plan to be completely fixed during the period when he was planning to get a medical certificate (at 293–294).  In the circumstances, the Court of Appeal was satisfied that the letter was, at best, instructions for preparing his will, and it did not apply the curative provision (at 294–295).

[37]         As illustrated by the George decision, one of the central concerns when determining the deceased’s testamentary intent is the finality of her decision.  When the document only amounts to instructions to create a will, or the document is not completed, or there is some other circumstance that negates the finality of the document, then that document does not represent its creator’s testamentary intent.  See for example Sawatzky v. Sawatzky Estate, 2009 MBQB 222, in which Simonsen J. held that an unsigned, typewritten document drafted by the deceased’s lawyer should not be treated as a valid will since there was evidence indicating that it was not intended to be the final draft of the will.  The deceased in that case was a meticulous individual who did not likely believe that death was imminent.  Given the large number of instructions previously given to his attorney and the large number of bequests in his previous holograph will, the court inferred there was a possibility that he had chosen not to sign the document immediately and give it more thought (at para. 31).

[38]         However, because wills can be revoked in the will-maker’s lifetime, it is important to note that this analysis looks at whether the deceased had a deliberate or fixed intent at the time they created the document, not for evidence of an irrevocable intention.  This was summarized in Young at para. 35:

…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.

[39]         I find Ms. Yaremkewich’s Will to be similar to the wills at issue in Kuszak v. Smoley (1986), 46 Man. R. (2d) 14 (Q.B.) and McNeil v. Snidor Estate, 2008 MBQB 187.  In both of these cases, the court applied the curative provision in Manitoba’s will legislation to treat standard-form will templates as valid wills even though the documents were not properly witnessed.

[40]         In Kuszak, the deceased printed a blank will template and completed it entirely in his own handwriting, but did not obtain any witness signatures.  Nonetheless, Glowacki J. found that the document represented the deceased’s testamentary intentions and ordered that the document was fully effective as a will.  Glowacki. J. summarized the relevant circumstances that influenced his decision as follows:

6        In the present case, the testamentary document was signed by the deceased and therefore there has been some compliance.  The lack of witnesses, although very important, does not prevent the court from admitting a testamentary document to probate if the court is satisfied that it embodies the testamentary intentions of the deceased.

7        The printed form was completed entirely by the deceased in his own handwriting and bears his signature in four places.  The printed form identifies the document as a “will” and was completed properly by the deceased.  The deceased was careful to deal with all of his estate and to appoint an executor.  The date is inserted in four places.  There is nothing before the court that suggests that the document does not embody the intent of the testator.

8        It is of concern to the court that the document in question does not bear the signature of any witnesses as this is one of the safeguards to ensure that the document is really the last will and testament of a testator.  If the printed form of document had been completed by some other person, or had it been a typed document with the signature of a testator without any witnesses, it may be that the court would not be satisfied that it embodied the last will and testament of a testator.  These are factors which must be considered in the circumstances of a particular case.

[41]         In McNeil, the deceased’s will was a template will on which he added handwritten comments.  The two witnesses signed separately.  One witnesses stated that the will was blank when he signed, and the other stated that she could not recall how much handwriting was on the document when she signed it and she did not read the document.  Following George and Kuszak, McCawley J. applied Manitoba’s curative provision and admitted the will to probate.  Some details which McCawley J. found to be significant were:

·                 the document revoked prior wills and expressed specific intentions of who should and should not receive the proceeds of estate;

·                 the document appointed an executor and provided him instructions for managing the estate and funeral arrangements;

·                 the document was entitled “Will” on the first page;

·                 all blank spaces in the will except for two were filled in with the deceased’s handwriting;

·                 the deceased signed the second and third pages of the will;

·                 the deceased had obtained witness signatures, although he did not comply with the proper formalities for witnessing a will;

·                 there was no evidence that the will did not indicate the deceased’s testamentary intention or that he lacked capacity to make a will; and

·                 the will demonstrated a reasonable explanation for the differences between it and the previous wills (at paras. 21–23).

 

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