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S. 58 WESA: Fixed Intention of Asset Disposal Required

S. 58 WESA: Fixed Intention of Asset Disposal Required

Re Cook Estate 2019 BCSC 417 applied Hadley Estate 2017 BC CA 311 that the applicable test under section 58 WESA has two main parts: 1) whether the record, document or writing is authentic and,2) whether the record, document or writing represents the deliberate or fixed and final intention of the deceased person.

Section 58 of WESA is a broad curative provision that allows the court to have the discretion to validate a document that is not been made in compliance with the formalities of will making as found in section 37 WESA, and allows the document to be admitted to probate, if satisfied that the document represents the testamentary intentions of the will maker.

The purpose of the remedial provision is to avoid the defeat of a will makers genuine intentions due to some technical defect.

The Court of Appeal in Hadley Estate approved of the following passage from the Estate of Young 2015 BCSC 182:

“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.

The Young Estate ibid. at paragraph 36 listed relevant factors to consider:

“ A wide range of factors may be relevant to establishing the deceased testamentary intentions 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.

Other factors identified in the authorities also include whether the language in the document connotes a sense of finality, or is precatory ( non binding words such as “wish” or “hope for”) in nature. Lane Estate 2015 BCSC 2162

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