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S. 58 WESA: 2 of 3 Notes Admitted as Will

S. 58 WESA: 2 of 3 Notes Admitted as Will

In Bizicki Estate 2019 BCSC 2142 the court pursuant to section 58 WESA, the court admitted two of three notes into probate as the last will of the deceased.

The documents stated the deceased’s wish that his girlfriend receive the money in his bank accounts and other personal property, so as to constitute his deliberate or fixed and final intention as to the disposition of the remaining money in his bank accounts, following payment of funeral expenses and debts.

The application by his long time girlfriend was opposed by the deceased’s next of kin.

The deceased was a long time tenant of a room at a Seymour St. hotel in Vancouver, a bachelor and had no children.

He was unsophisticated and his long time girlfriend, the applicant could not read or write English.

She found three original notes on separate pieces of paper, with only one of them being dated, November 23, 2009.

One of the notes in particular, which the judge called the “money note”, directed that his monies be applied to pay off debts, and that monies left over are to be awarded to his girlfriend. He stated where his bank account was.

In that account he had approximately $272,000.

The court found that each of the notes was written in contemplation of death and addressed what will be done with his property when he is dead.

The court put importance on the fact that the deceased never previously made a will executed with the proper requirements of S 37 WESA.

There was no dispute that the handwriting on the three documents was that of the deceased, and this was also established their expert evidence.

The court followed the application of section 58, as set out in two decisions, namely Estate of Young 2015 BCSC 182 and Hadley Estate 2017 BC CA 311.

In Young estate the court stated:

“The burden of proof that a noncompliant document embodies the deceased testamentary intentions is a balance of probabilities. A wide range of factors may be relevant to establishing their existence in the particular case. Although context specific, these factors may include the presence of the deceased signature, the deceased’s handwriting, witness signatures, revocation of previous wills, funeral arrangements, specific bequests, and the title of the document.

While imperfect, or even noncompliance 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 testamentary intention.”

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