Court Orders Curing Deficiencies in Wills: What Will-Makers and Executors Should Know

British Columbia’s Wills Estates and Succession Act (“WESA”) sets out specific formal requirements for preparing a valid Will in British Columbia. In general, to be valid, a Will must be in writing and signed at the end by the Will-maker in the presence of two or more witnesses who also sign the Will in the presence of the Will-maker. With few exceptions, a Will that does not comply with these formal requirements is not valid and is not effective to govern the disposal of a person’s property on death. However, section 58 of WESA gives the court the power to order that a document or other record that does not comply with the formal requirements of WESA be effective to govern the disposal of a deceased person’s property.

In this article, we set out the factors that a court will consider in making a determination under section 58 of WESA and consider the implications for Will-makers and executors or administrators of estates.

Court Order Curing Deficiencies – Section 58 of WESA

Section 58 of WESA gives the court the power to order that a record, document or writing or marking on a Will which does not comply with the formal requirements for making a Will be fully effective as:

• the Will or part of the Will of the deceased person,
• a revocation, alteration or revival of a Will of a deceased person, or
• the testamentary intention of the deceased person.

Key Section 58 Decisions – Re Young Estate and Re Hadley Estate

Section 58 has been considered by the court in a number of cases and it is settled law that the key issue on an application under section 58 is whether, on a balance of probabilities, the document before the court was intended by the deceased to have testamentary effect. The question the court will ask is: does the document record the deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death?

In Re Young Estate, the British Columbia Supreme Court set out the factors to be considered in determining whether a document was intended by the deceased to have testamentary effect. The court noted that there are a wide range of factors that may be considered and those factors are context- specific. Factors that the court may consider include:

1. the presence of the deceased’s signature on the document;
2. the presence of the deceased’s handwriting on the document;
3. the presence of witness signatures on the document;
4. whether the document purports to revoke previous Wills;
5. whether the document contains funeral wishes;
6. whether the document makes specific bequests of the deceased’s property; and
7. the title of the document.

There is no required minimum level of compliance with formal testamentary requirements in order for the court to make an order under section 58. However, generally, the further a document departs from the formal requirements for making a Will, the more difficult it will be for the court to find that the document embodies the deceased’s testamentary intentions.

In Re Hadley Estate, the British Columbia Court of Appeal held that, when considering an application under section 58, the court will consider the language of the document itself, as well as extrinsic evidence about the deceased’s intention. Extrinsic evidence may include the circumstances surrounding the making of the document at issue and also direct statements of the deceased.

The time for determining testamentary intentions may vary according to the circumstances and, according to the court in Re Hadley Estate, it is not necessary that the deceased had testamentary intent when the document at issue was prepared. The court in Re Hadley Estate stated that a document may acquire a testamentary character “by subsequent and sufficient manifestation of the will-maker’s intention.” However, in most cases, the court will focus on the deceased’s intentions at the time that the document was prepared.

What Will-makers and Administrators or Executors of Estates Should Know

Section 58 of WESA can be useful in situations where a Will was not executed in compliance with the formal requirements of WESA due to simple mistake or oversight. It can also be an important tool for the courts to give effect to a Will-maker’s intention where a Will-maker did not have an opportunity to prepare a formal Will but prepared another document expressing their testamentary intentions. In such situations, section 58 may prevent intestacy and give effect to a Will-maker’s final wishes.

However, section 58 may also have unintended consequences and create uncertainty, particularly when a formal Will is prepared and, subsequent to the Will-maker’s death, another document containing testamentary wishes is discovered. Determining which document should govern the administration of the deceased’s estate can potentially create conflict and is likely to entail significant time and expense

It is important that Will-makers be aware of section 58 of WESA and be mindful of what they put into writing. Just as it is important to ensure that one has a valid Will, it is equally important to refrain from preparing informal documents or writings expressing wishes that a court might consider to be testamentary in nature. A Will-maker should never make notes or markings on their Will after it has been executed in the absence of legal advice regarding the same. It is always advisable to obtain legal advice before preparing or making changes to a Will or other document setting out wishes for dealing with your affairs after death.

Executors of estates should be alive to the possibility that, even where a deceased person died with a valid Will, there may be other testamentary documents that need to be brought to the attention of the court. When making an application for probate, the executor of an estate must make a diligent search for Wills and other testamentary documents of the deceased. If a document which appears as though it may express testamentary intentions is located and that document was or may have been prepared on a date later than the date of the Will, the executor is obligated to bring that document to the attention of the court.

If you have any questions about estate planning or administration, EKB’s experienced team of Wills and Estates practitioners would be pleased to assist you. Please contact Allison Sharkey for more information.

The content of this article is provided for general information purposes only and does not constitute legal or other professional advice or opinion of any kind. Users of this article are advised to seek specific legal advice by contacting members of Edwards, Kenny & Bray LLP.