In previous blog posts dated
February 28 and
May 27, we suggested that when the Wills, Estates and
Succession Act ("WESA")
came into force, the legal landscape had changed and interesting
court cases would follow. One such change to the landscape is
section 58 of WESA, which allows the Court to cure
deficiencies in Wills. If a document does not comply with the
formal requirements for a Will, it may nonetheless be declared to
have the legal effect of a valid Will. To date, there have
not been any British Columbia cases decided under section 58.
Before WESA came into force, Alberta's updated
wills and estates legislation came into force. It contains a
similar (but not the same) provision to section 58 of
WESA. A recent Alberta decision set out how the
Alberta legislation is to be interpreted. The decision serves
as a contrast to how we predict the Court will interpret the
British Columbia legislation.
In the Woods Estate decision, the deceased passed away
suddenly. A lawyer had attended the deceased's home and
took instructions for the preparation of a Will by filling out a
wills questionnaire. The questionnaire contained information
about how the deceased wished her assets to pass on death.
Before a Will was drafted by the lawyer and executed by the
deceased, the deceased died. The Alberta Court held that, indeed,
the questionnaire contained the deceased's intentions regarding
her estate. If a formal Will had been prepared, it would have
contained the essential points as reflected in the
questionnaire. Nevertheless, based on an interpretation of
the Alberta legislation, the Court held that because the
questionnaire did not contain the signature of the deceased, it
could not be admitted as a Will. The judge appeared somewhat
troubled by the decision, ending the judgment by stating,
"...the Alberta legislature elected not to follow that
recommendation [a broader curative power] when enacting the
Act. That is a policy decision upon which I make no
The British Columbia legislature made a different election than
the Alberta legislature. Section 58 of WESA includes
the broader curative power that was contemplated and rejected in
Alberta. A document need not necessarily be signed by the
deceased to be declared valid as a Will pursuant to section 58 of
WESA. If the Courts interpret section 58 as we
expect that they will, decisions such as Woods Estate may
be avoided in British Columbia.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
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.
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.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).