Section 58 WESA 2020

Section 58 WESA 2020

I spent approximately 40 years of my 46 years of practice in attempting to set aside  wills for invalid execution or other technical faults, but s.58 WESA brought that to an end.

As a result of the introduction of WESA on March 31, 2014, many of those long-lasting but strict rules of execution of wills were abandoned in favour of a discretion in the court to allow the introduction of a document into probate, provided the document is authentic and represents the last testamentary wishes of the deceased.

Some provinces, such as Alberta have a minimum requirement of compliance with the formal requirements of execution, but British Columbia does not.

Section 58 of WESA does not require any degree of compliance with formal requirements for the creation and execution of a will that is set out in Section 37 of the same act.

Most of the cases that have come before the court in the last six years under section 58 have been documents either signed by the deceased or at least written by the deceased that in some way when compiled together may form a testamentary intention that the courts will uphold.

I note that an Australian Supreme Court approximately 5 years ago found an unsent text message by a person who then committed suicide, to be a valid will under their corresponding section 58 legislation.

Thus far, the courts appear to be quite liberal in over riding poorly written or improperly executed last wills and Testaments, provided the court is satisfied that the record does represent the last testamentary intentions of the deceased person.

I fear that as more and more people see no reason to pay a lot of money to a lawyer for a ” simple will”,   that the courts will face increasing challenges in interpreting poorly drafted unwitnessed  documents that purport to be wills.

An example of the liberal latitude given by the courts that require no minimum compliance with execution, is Furlotte v Mcallister 2005 NBQB 310, a New Brunswick case, which also like British Columbia has no requirement for minimum compliance with proper execution of the will.

In that case, several of the deceased children found in unsigned handwritten document setting out a number of bequests, including a bequest of the deceased’s house. Each of the deceased children who were present at the house read the document and the left it on the table near a file folder and the deceased’s house. When they returned the next day the document was gone and never found.

One of the deceased children who had been present when the document was found made a list of the deceased bequests based on her memory of her review of the document. The contents of the list generally matched conversations the deceased had with her family about her wishes and accorded with the memory of at least one other of the deceased children.

The court admitted the list written will by the deceased children into probate.

While the decision of the New Brunswick Supreme Court has no binding effect on the Supreme Court of British Columbia, I suspect that given a similar fact pattern that the BC courts would reach the same conclusion.

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