Henderson v Myler 2021 BCSC 1649 is another case dealing with the curative powers of S. 58 WESA to fix a will that otherwise would not be valid due to defective witnessing procedures and the like.
Section 58 is a curative provision, conferring broad discretion on the court to relieve against the consequences of non-compliance with strict testamentary formalities otherwise required by WESA in order to find that a record, document or writing, or a marking on a will or document, represents the testamentary intentions of the deceased. In Hadley Estate (Re), 2017 BCCA 311 at para. 34, the Court of Appeal describes s. 58 as “remedial in nature”.
The focus is on whether the document represents the testamentary intentions of the deceased.
In Hadley, the Court of Appeal said that s. 58 is similar to a curative provision in Manitoba. It cited and relied on the leading appellate authority from Manitoba, George v. Daily (1997), 143 D.L.R. (4th) 273 (Man. C.A.).
In George at para. 35, the court confirmed that testamentary intention meant more than an expression of how a person would like their property to be disposed of after death and the key question is whether it records a “deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death” at the material time. Such a finding is intensely context and fact specific.
BC cases, and cases from other jurisdictions with similar curative provisions (Manitoba, New Zealand, and Australia), show the context and fact-specific nature of the analysis.
In George, the court set out the following principles:
- The standard of proof on an application under the curative provision is proof on a balance of probabilities (para. 20).
- The greater the departure from the requirements of formal validity, the harder it may be for a court to be satisfied that the document represents the deceased’s testamentary intention (para. 19).
- The requirements for formal validity of a will serve several functions, including:
- an evidentiary function by providing the court with reliable and permanent evidence of testamentary intention and the terms of the will; and
- a cautionary function by impressing upon the testator the solemnity, finality, and importance of his actions in making his “last will and testament (at paras. 21–26).
- The evidentiary and cautionary functions are particularly relevant to the determination of whether or not a writing or document embodies the testamentary intentions of a deceased (para. 22).
- Not every expression made by a person, whether orally or in writing, concerning the disposition of his or her property on death embodies his or her testamentary intentions (para. 62).
In Estate of Young, 2015 BCSC 182 at para. 35, Justice Dickson (as she then was), applying George, said that on an application under s. 58 of WESA.
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.
At para. 36 of Estate of Young, citing Manitoba cases, Justice Dickson set out a list of factors relevant to the determination of whether a document, that does not otherwise comply with the formal requirements of WESA, expresses the deceased’s testamentary intention. The list is non-exhaustive and includes the deceased’s handwriting, the deceased’s signature or witness’ signatures, a revocation of previous wills, funeral arrangements, specific bequests, and the title of the document.