Trevor Todd and Jackson Todd have practiced estate litigation for over sixty combined years , including S. 58 WESA claims as is the documents a valid will?

 

Section 58 WESA-“ Is It a Will”

 

Section 58 of Wills, Estates and Succession Act, SBC 2009, c.13 [“WESA”] has now been in effect in British Columbia for just over ten years. The purpose of this paper is to examine how this provision, perhaps the most “far reaching” of the WESA estate overhaul, has changed the estate litigation landscape. I venture to say that most non-legally trained people will find some of the recent s. 58 case law remarkable.

Section 58 WESA permits the court to allow a document to be fully effective as though it had been made as a will, where the court determines the document represents a deceased’s final testamentary intentions. Before WESA, documents that failed to strictly comply with the formal requirements of the Wills Act, R.S.B.C. 1996, c. 489 regarding the making, signing, and witnessing of a will were invalid.

The clear intent of s. 58 WESA is to allow the court to focus on what was the testator’s testamentary intention, rather than on technical deficiencies in the execution of the will. The court is permitted to give testamentary effect to a document, including one in digital form, that was not properly executed as a will, if the court is satisfied that the document represents the true testamentary intentions of the deceased.

The case law typically breaks down into two different scenarios with many variations:

• Where will maker simply failed to comply with the formal requirements in completing a form such as proper execution-these are usually home – him made will situations; or
• Where a third-party document is put forward is sufficient proof of the necessary intention to either make alter, revoke or revive a will-such as the lawyer’s file notes as to the will maker’s intentions.

The courts in several BC cases have stated that the closer the will comes to satisfying the formal requirements for complying with the proper execution of a will, the greater the chance is the court will apply s. 58 to cure it:

THE LAW

Simply put, section 58 of WESA permits the court to give testamentary effect to a document that was not properly executed as a will, if the court is satisfied that the document represents the testamentary intentions of the deceased.

The test to be applied became reasonably quickly settled in the two leading cases of by Estate of Young 2015 BCSC182 and Re Hadley Estate 2017 BCCA 311.

What makes these cases interesting is the myriad of facts that can leave one wondering if it could be a valid will.

 

 

Manitoba

The BC Courts have followed the reasoning of a Manitoba Court of Appeal case George v. Daily (1997) 143 DLR (4^th) 273, which discussed at length the limits placed on a courts “curative powers” and held there must be a deliberate or fixed and final expression of intention as to the disposal of his/her property on death.

However, it must be established that the document(s) being propounded as a will was intended by the deceased to have testamentary effect. The court must therefore be satisfied on a balance of probabilities that the writing embodies the testamentary intent of the testator or testatrix.

The term “testamentary intention” means much more than a person’s expression of how he would like his/her property to be disposed of after death. The essential quality of the term is that there must be a deliberate or fixed and final expression of intention as to the disposal of his/her property on death: Bennett; Molinary v. Winfrey (1960), [1961] S.C.R. 91; and Canada Permanent Trust Co. v. Bowman, [1962] S.C.R. 711.

 

BC Law – Cured Wills

One of the leading cases on the curative powers of s.58 in B.C. involved curing pages of a memorandum done to a will and referred to as signed in the will, but the documents presented to the court were not signed.

Re Young Estate 2015 BCSC 182, which largely follows George v. Daily, held the memorandums disposing of personal effects were cured and formed part of the last will of the deceased.

…” 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.”

The burden of proof that a non-compliant document embodies the deceased’s testamentary intentions is a balance of probabilities.  A wide range of factors may be relevant to establishing their existence in a particular case.  Although context specific, these factors 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:

While imperfect or even non-compliance with formal testamentary requirements may be overcome by application of a sufficiently broad curative provision, the further a document departs from the formal requirements the harder it may be for the court to find it embodies the deceased’s testamentary intention:  George at para. 81.

 

Re Hadley Estate 2017 311 confirmed the test set out two years earlier in Re Young. The case establishes:

• British Columbia does not require a minimum level of execution or other formality to create a will;
• a fixed and final intention does not mean an irrevocable intention;
• the material time is usually when the document was created, but depending on the circumstances, a document may acquire a testamentary character by subsequent and sufficient manifestation of the will maker’s intention;
• wide array of extrinsic evidence is admissible to illuminate the deceased’s state of mind and intentions; and
• these issues are decided upon the civil standard of the balance of probabilities and are intensely fact specific.

 

“IMPROPERLY” WITNESSED WILLS

Re Yaremkewich Estate 2015 BCSC 1124, was an uncontested application to cure the defects of improperly witnessed wills. In this particular case, the court found that the two witnesses to the will testified they signed as witnesses to a blank will template, that had no attached pages setting out bequests as was found  with the will after death. They could not recall if the deceased signed the will, at the same time as them.

For hundreds of years prior to WESA the court would have found the will to be invalid for failure of proper execution. Instead, the court followed section 58(3)(a), which empowers the court to order that a document or other record is fully effective as the will of the deceased person if the court is satisfied that the document represents the testamentary intentions of that deceased person.

The court was further satisfied as to the testamentary intentions by reason of detailed wordings and pages of attachments left by the deceased in an envelope entitled with the name of the deceased and declaring it to be her last will.

Extrinsic evidence is admissible on the question of testamentary intent, and the court is not limited to the evidence that an inspection of the document provides.

 

 

 

Computer Message

In Re Hubschi Estate 2019 BCSC 2040 an electronic document found on the deceased’s computer entitled “Budget for 2017” message was found to be a valid will. The word document stated: “get a will made out at some point. A5-way assets split for remaining brothers and sisters. Greg, Annette or Trevor as an executor.”

The court followed Re Hadley that there is no minimum level of execution or other formality for a testamentary document to be found fully effective.

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.

Signed Suicide Note

Gregoire v Cordani, 2020 BCSC 276 held that a signed but unwitnessed suicide note was remedied under section 58 WESA and held to be a valid will.

The note stated:

 

This is my will. Please respect my wishes.

Claude common-law husband gets my apartment and all its contents, and HSBC bank account

Michael brother gets all the rest RRSP account at HSBC

Stephen and Adam get nothing

Nobody, no doctors is to blame. Please be happy for me.

Signed- social insurance number

The court considered the following factors in reaching the conclusion the suicide note was a valid will, namely:

 

• The document is referred to a will and states her intention that the

notice to be treated as such;

• the note does not appoint an executor but specifically addresses the referred to parties to please respect my wishes. The court held that this is the direction to those parties to act on her behalf;
• -the note was in the deceased’s handwriting, and signed by her;
• the note was not witnessed, but it does refer to her depression and appears to be written in contemplation of taking her own life;
• the note was found in a locked car by the place near where her body was found, indicating an intention that it be found;
• the note was dated the same date that she went missing;
• the deceased made specific bequests of major assets of her estate;
• the notes stated, or social insurance number, bank account numbers and -the address of her apartment;
• the language of the note as an air of finality;
• she left nothing to her two other brothers and mother, which is consistent -with statements made to her common-law spouse husband; and
• there are no allegations of testamentary incapacity or undue influence .

Lawyers Letters

Re McGavin Estate 2023 BCSC 819, the deceased, while in a rest home, met with her lawyers on two occasions. The lawyers in turn sent the client two letters confirming their instructions and asking for some clarifications or any possible changes that might be desired. The letters largely summarized the deceased’s assets and liabilities and her instructions for dividing her estate specifically amongst identified beneficiaries and specific purpose portions.

Covid struck and the client was not allowed visitors for the purpose of executing the will and while she told her lawyers that she did not wish to die intestate, she in fact appeared to do so.

The court found that the lawyer’s two letters of instructions for dividing up the estate were authentic, and they contained the full, final and fixed intention of the deceased for reasons that were included in the exchange of letters.

Unsigned/ Undated

Skopyk Estate 2017 BCSC 2335 cured an unsigned/undated will that varied an earlier will. The court found that the handwriting on the will was similar to other samples of handwriting produced.

The court was persuaded by the following extrinsic evidence:

• it was pinned to a bulletin board in the apartment so it would be found;
• The distribution was rational and the previous beneficiary had died;
• directing the division of the residue in certain specific shares in mind with language that mirrored the language of the 1995 will;
• although it was not signed or witness the word witness was written near the bottom;

 

• -although the document was not dated, there was a reference at the top of the deceased will dated November 16, 1995, and it also corrected a typographical error in the 1995 will;

 

• the handwriting was reasonably similar to handwriting in a letter entered and evidence; and

 

• the day for heart surgery the deceased said he had been working on his well, and that his wishes were different from that of the 1995 will

 

Two Letters Changed the Will

In Re Noel Estate, 2023 BCSC 2473, a testator had a change of heart re a joint account held by her and the petitioner. She phoned and then wrote to her lawyer to change her will and the lawyer said it would be easier to prepare a letter to indicate her new intentions rather than doing a whole new will. The testator signed the letter in front of two witnesses.

The court found the letter to be authentic and to reflect the deceased’s intentions which she stated many times verbally and in the letter to more than one person. The court held that the letter altered the terms of the previous will.

 

White-Out Allowed

In Re Levesque Estate 2019 BCSC 927, the court found that the use of “white out” (and presumably a dark pen as well) to delete a gift in an existing will was a deliberate and considered act, which was validated under S.58 WESA.

 

CASES WHERE “THE CURE” REFUSED

Six Notes Refused

Re Lane Estate, 2015 BCSC 2162, set out for and against examination of the factors the court considered, and concluded that the six various documents did not form a valid will.

The factors supporting finding a will were:

• the deceased used the formal language of “I, Elda Lane leave … to my son” in several of the notes;
• some of the notes are signed at their end by the deceased;
• the deceased told the petitioner she wanted him to have her house after she died and that she had left a note to that effect;
• six of the notes contemplate a distribution of the estate by which the petitioner would receive all of the residue of the estate; and

 

• the October 21, 2012 note identifies the property to be left to the petitioner as including the deceased’s principal assets, her house and the Scotiabank account.

Factors finding against a will were:

• each of the notes is written on the back of a receipt, grocery list, calendar, or other scrap paper, suggesting impermanence and informality rather than a fixed and final intention;
• none of the notes were witnessed.  They all lack one of the fundamental hallmarks of formal validity;

 

• there is no express revocation of the deceased’s Will.  This case is distinguishable from Estate of Youngwhere the document admitted to probate was generally consistent with the deceased’s will;

 

• none of the documents bear a title. Here there is no evidence that the deceased either showed or provided copies of her notes to anyone else;

 

• the deceased appears to have made the December 15, 2014 and  January 9, 2015 notes at times when she thought she might shortly die.  By suggesting that the gift was contingent upon her imminent death these notes may not represent an expression of the deceased’s fixed and final testamentary intention.

No Final Testamentary Expression

Pulk Estate, 2018 BCSC 1321, dealt with a will done following major surgery and before the deceased’s death a few days later. A will was drafted following the surgery that purported to leave the deceased’s estate to his four siblings in equal shares. The will was not drafted by the deceased, and it was not signed by him prior to his death.

Contrary evidence was obtained where the best friend of the deceased told him he was going to leave everything to his daughter. The court found that the will did not represent a deliberate and final expression of the deceased testamentary intentions and refused to invoke the provisions of section 58 WESA to cure any deficiencies.

 

CONCLUSION

The critical issue in every section 58 will case is whether the document represents the deliberate or fixed and final intention of the deceased person as to his or her testamentary wishes.  The case law indicates that finality is the central concern.

It is obvious from the case law approving a curing of a will that the courts have allowed a very liberal interpretation as to what may got a valid last will.

Various factors have been considered section 58 applications, but no single factor is determinative, and could be given lesser more weight depending upon the circumstances in each case. For example, having a witness present to the execution of the will, will be given some weight by the court, and while British Columbia is not a substantial compliance jurisdiction, and has no minimal level of compliance needed, the absence of a signature or witness is not fatal to the will.

*Attention Reader: GET LEGAL ADVICE – It’s more complicated than you think*

The public is reluctant to pay a lawyer’s hourly rate to prepare what they invariably regard is a “simple” will. (Every notary/lawyer should know there is no such thing as a simple will).

Many lawyers have historically been prepared to prepare wills as a loss leader, but with increased overheads and consumer sensitivity to price,  there is friction in the area of preparation of wills, powers of attorney, representation agreements and other estate planning documents that, when combined with the information available on the internet, will cause many in the public to save on costs by preparing their own wills and other estate documents .

As the public becomes more aware of the curative provisions of WESA, they will become increasingly encouraged to prepare their own wills.

Most law firms that are economically viable in wills and estates now charge their hourly rate which is often much higher than the client is prepared to pay.

The curative provisions of WESA such as sections 58 and 59 were well-intentioned and generally are reasonable once the court is satisfied that the documents are authentic and reflect the final intentions of the deceased.

The problem essentially is that the legal test for mental capacity is a legal test, not medical, and the removal of the lawyer from the preparation of the will process is simply an unintended consequence  hat will ultimately lead to more contested “homemade” wills litigation, particularly in issues related to mental capacity, undue influence and wills interpretation.