S.59 WESA Order Made After 180 Days Post Probate

Simpson v Zaste 2022 BCCA 208 was an appeal from an order granting leave to rectify a will under S 59 WESA, after the 180 day limitation period of the wills variation provisions under section 60, and to rectify a will pursuant to section 59 of WESA.

The appeal court allowed the appeal in part and granted leave, but the rectification was set aside and substituted.

The deceased had intended to gift certain shares to his children that were subject to a shareholder agreement requiring his personal representative to sell the shares to the other shareholder at fair market value, less the amount of a life insurance policy in favor of the appellant widow.

The deceased fail to recognize that the effect of the shareholders agreement was that the gift would fail and his estate would receive an unintended windfall.

The children out of time for a wills variation claim successfully brought an application for rectification to receive the gross value of the shares, including the value of the life insurance policy.

The appeal court found that the judge erred by failing to recognize the prejudice to the appellant to be out of time to bring her own variation claim upon rectification of the will.

The judge erred further in speculating that the deceased intended his children to receive the gross value of the shares when the evidence indicated that the children were only to receive the shares as encumbered, and the widow was to receive the proceeds of the life insurance policy.

Given the merits of the claim however it was in the interests of justice to grant leave and rectify the will to gift the net value of the shares to the children.

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