The curative provisions of section 58 WESA were declined in De Bon estate 2021 BCSC 505 Van where the court refused to vary a January 2012 will that the deceased referred to in six subsequent letters that purported to vary the 2012 will in various degrees.
Many of the subsequent documents referred to as “ instructions to assist and provide guidance to the executor” of the estate, or “ to whom it may concern”, were contradictory with respect to what part of the bequest was going to be distributed to which individual and at what time.
The court was satisfied that the documents were created by the deceased, although not all were signed by him, but were clearly prepared in his handwriting. The deceased also made arrangements for the documents to be delivered to his executor.
Most importantly, the court found that at no time was their language in any of the documents that provided for a revocation of the 2012 will.
The deceased was familiar with the preparation of wills, as he had prepared and had delivered to the wills registry six notices of filing of early earlier versions of a will, all prior to the 2012 will.
The court found on a balance of probabilities that the provisions of the 2012 will remained unaffected by the subsequent letters and notations and none of them purported to be a will dealing with intentions of someone who was well aware of the statutory elements a will must contain
Accordingly, the court found that the notes did not contain the testamentary intentions of the deceased.
In the Estate of Palmer, 2017 BCSC 1430, Justice Kent summarized the analysis required pursuant to s. 58 of WESA as follows;
27. The recent case of Estate of Young, 2015 BCSC 182, describes the legal framework applicable to s. 58 of WESA and the curing of “deficiencies” related to the making or alteration of a will. The history and intent of the legislation, including the case law in other jurisdictions addressing similar provisions, is set out in paras. 16–33 of that decision and will not be repeated here.
The law is summarized in paras. 34–37 of the decision and can be paraphrased as follows:
• the courts’ curative power with respect to non-compliant testamentary documents is inevitably and intensely fact-sensitive;
• the first threshold issue is whether the document in question is authentic;
• the second, and core, issue is whether the non-compliant document represents the deceased’s testamentary intentions;
• a testamentary intention means much more than the expression of how a person would like his or her property to be disposed of after death. Rather, the document must record a deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death;
• the burden of proof that a non-compliant document embodies the deceased’s testamentary intentions is the balance of probabilities;
• factors relevant to establishing the existence of a fixed and final testamentary intention may include the presence of the deceased’s signature, the deceased’s handwriting, witness signatures, revocation of previous wills, funeral arrangements, specific bequests and the title of the document; and
• generally speaking, the further a document departs from the formal validity requirements of the legislation, the harder it may be for the court to find that it embodies the deceased’s testamentary intention.