The Wills, Estates and Succession Act
("WESA") implements a variety of changes. One of
the most significant changes is to empower the Court to order that
a record, document, writing, or marking on a Will or document is
fully effective as a Will even though the formal requirements for
the format and execution of the Will have not been met.
There have been a few reported cases of the Court's curative
power under Section 58 of WESA. The most recent judgment
on this issue was just released on June 30, 2015.
In Re Yaremkewich Estate, the Deceased died leaving
documents that did not comply with the statutory execution
requirements. Prior to her death, the Deceased executed a
pre-printed will template form titled "Last Will and
Testament" (the "Template"). The Deceased filled out
the Template by appointing executors, setting out burial
arrangements, directing certain expenses and taxes to be paid from
her estate, and providing a number of gifts to relatives, friends
She also referred to three other documents in the Template by
directing the readers to "see attached instructions" and
"see attached for other bequests". She left the
Template and the three documents in an unsealed envelope. Two
of the documents were handwritten lists of bequests. The third
document was care instructions for her dog.
The Template was signed by two witnesses; however, the two
witnesses testified that the Template was blank and there were no
attached pages when they signed as witnesses. One of the named
executors applied for an Order that all of the noncompliant
documents or some portion of them be treated as a fully effective
Will pursuant to Section 58 of WESA.
After hearing all of the evidence, the Court found that the
Template and the two documents detailing lists of bequests were
fully effective as the Will of the Deceased. In making that
decision, the Court emphasized that the applicant in a Section 58
application must prove on the balance of probabilities that the
record at issue is authentic and that it represents the
testamentary intentions of the will-maker.
The Court further stated that the types of evidence that are
relevant to prove testamentary intent will vary from case to case.
In this particular case, the contents, the detailed wording of the
Template and its attachments, and the circumstances in which they
were found militate in favour of finding that the Template and two
of the accompanying documents, the bequest lists, represent the
Deceased's testamentary intention. This means that they
represent her fixed and final expression of intention as to the
disposal of her property on death.
It is important to note that even though a defective Will may be
cured by the Court, it is expensive to go through the court
application process. The best practice is to engage an estate
planning professional to have the Will properly prepared and
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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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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