As we indicated
previously, when WESA comes into force on March 31,
2014, the courts will have discretion to accept for probate a
document or record that does not meet the formal requirements for
the execution of wills. BC courts have not had this
discretion in the past. Pursuant to section 58 of
WESA, the court may order that any "record, document
or writing, or marking on a will or document" be fully
effective as though it were a valid will, if the court is satisfied
that it represents the testamentary intentions of the
deceased. Electronic records are included in the definition
of "record". Bearing this in mind, a recent blog
post by Hull & Hull LLP titled "Court Refuses to Accept Text Messages as a
Will" is particularly interesting.
A Swedish newspaper reports that a man spent his
last hours communicating his testamentary wishes via text
message. A district court ruled that the text messages were
valid as a will, but this decision was overturned on appeal.
Swedish law professor Margatreta Brattström noted that the
messages would have been valid as a will if they had been recorded
with a pen. This begs the question: how would a BC court rule
While we do not yet know how BC courts will interpret s. 58 of
WESA, similar provisions in other Canadian jurisdictions
shed light on the question. In Manitoba, for example, a
document may be valid as though it were a will if it is "a
deliberate or fixed and final expression of intention as to the
disposal of his/her [the deceased's] property on
death". You will recall that under WESA an
electronic record may qualify. It follows that with facts
similar to the Swedish case, there would be a strong argument that
the text messages were the fixed and final expression of intention
as to the disposal of property and should, therefore, be valid as
though they were a will.
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It is not uncommon for parents to provide monetary gifts to their adult children. Parents may wish to help their child with a down payment on a property, or help pay out their child's existing mortgage.
On March 31, 2014, BC's new Wills, Estates and Succession Act1 ("WESA") will come into force. WESA introduces new protections for beneficiaries of estates that are in danger of being disputed or deemed ineffective by a court.
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