When a person is dying, their intensions on distributing their assets may change after their Last Will and Testament (the "Will") was prepared. When this occurs, there may not be enough time to see a lawyer to arrange to have a new Will prepared or changed. Notes, letters, or recorded data may be left behind that may change the deceased intentions contrary to their Will. We refer to this as the "Record."
The issue then becomes determining which one is valid: the Will or the Record prepared after the Will. In other words, is the Record left behind sufficient evidence to establish the testator's intention in law?
The Wills, Estate and Succession Act ("WESA") in B.C. allows the court to cure technical deficiencies in a persons' Will. Section 58 of WESA states:
58 (1) In this section, "record" includes data that
(a) is recorded or stored electronically,
(b) can be read by a person, and
(c) is capable of reproduction in a visible form.
(2) On application, the court may make an order under subsection (3) if the court determines that a record, document or writing or marking on a Will or document represents
(a) the testamentary intentions of a deceased person,
(b) the intention of a deceased person to revoke, alter or revive a Will or testamentary disposition of the deceased person, or
(c) the intention of a deceased person to revoke, alter or revive a testamentary disposition contained in a document other than a Will.
(3) Even though the making, revocation, alteration or revival of a Will does not comply with this Act, the court may, as the circumstances require, order that a record or document or writing or marking on a Will or document be fully effective as though it had been made
(a) as the Will or part of the Will of the deceased person,
(b) as a revocation, alteration or revival of a Will of the deceased person, or
(c) as the testamentary intention of the deceased person.
(4) If an alteration to a Will makes a word or provision illegible and the court is satisfied that the alteration was not made in accordance with this Act, the court may reinstate the original word or provision if there is evidence to establish what the original word or provision was.
The Use of "Records" in BC Courts
One of the first cases in B.C. to interpret section 58 of WESA was Young Estate (Re), 2015, BCSC 182. In this case, the deceased had a Will executed on March 2, 2009. After her death, two documents were found on the deceased dining room table: (1) a signed document dated June 17, 2013; and, (2) an unsigned document dated October 15, 2013. The documents changed the testator's intentions with respect to distributing assets.
Madam Justice Dickson (as she then was) concluded the courts' curative power is intensely fact sensitive. There are two principal issues: (1) is the document authentic; (2) whether the non-compliant document represents the deceased's testamentary intentions.
Factors the court will take into account when determining whether the document contain the testamentary intentions of the deceased include:
- the presence of the deceased signature,
- the deceased handwriting,
- witness signatures,
- revocation of previous Wills,
- funeral arrangements,
- specific bequests,
- the title of the document,
- such other factors as may be relevant given the context.
The further a document departs from the formal requirements the harder it maybe for the court to find it follows the testator's intentions. In this case, the signed document was valid but the unsigned document was not valid.
In Beck Estate (Re) 2015 BCSC 676, the deceased prepared a letter a number of years after executing a Will setting out different intentions with respect to her assets. The letter was not witnessed but was dated, signed, written by the deceased and given to her executor, her son, prior to her death. The court found that the portion of the letter which administered a gift was valid. The portion of the letter setting out her intentions of what to do with the land left behind was found to be merely an expression of wishes or recommendations.
In Gibb Estate (Re) 2021 BCSC 2461 the deceased left a Will dated March 14, 2011 (the "2011 Will") as well as a newly drafted will prepared by his lawyer on instructions given to him eight days before his death in 2017 ("New Will"). The New Will was verbally reviewed by the deceased and his lawyer over the phone but was not physically reviewed. An appointment was made for execution of the New Will but Mr. Gibb died before that date.
The court found that the involvement of a solicitor throughout was significant. The solicitor knew Mr. Gibb and was familiar with his affairs. The solicitor was satisfied that Mr. Gibb had the mental capacity to give instructions and understand the intentions set out in his New Will. Mr. Justice Punnett relied on Section 58 of WESA and ordered that the New Will represented Mr. Gibb's fixed and final testamentary intentions.
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.
