WESA, the new estate legislation, contains a "dispensing
power", which allows a Court to order that a writing that does
not meet the formal requirements of a Will is still effective as a
Will. This morning, Gordon Behan and I applied to Court for
an order that a letter written by the deceased on the day of his
death be declared effective as his Will. The British Columbia
Supreme Court granted that order.
This is noteworthy because the dispensing power (section 58 of
WESA) is new to British Columbia. Our August 2014 issue of Your Estate Matters
addressed section 58 generally. Despite being in effect since
March 31, 2014, there are no published cases in British Columbia
that address how and when the Court should exercise its dispensing
power. As a result, we looked to other provinces with similar
legislation. In particular, George v. Daily is a
comprehensive Manitoba Court of Appeal decision that has
been followed both in Nova Scotia and in New Brunswick.
The cases above indicate that the question to be answered is
whether the writing expresses the fixed and final intention of the
deceased to dispose of their assets after death. In our case
today, the Court held that the letter did express those
As can be seen from today's decision, this new power given
to our BC Courts will allow the Court more flexibility to give
effect to documents that truly express the deceased's fixed
intentions but do not comply with formal Wills requirements.
As the Manitoba Court of Appeal said, "Relief from literal
compliance with those requirements is an idea whose time has
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.
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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.
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