fbpx
Generic selectors
Exact matches only
Search in title
Search in content
Search in posts
Search in pages
_pods_template
lawyer
acf-field-group
acf-field
Lorne MacLean, QC Estate Litigation and Wills Variation Trial lawyer
Lorne MacLean, QC Estate Litigation and Wills Variation Trial lawyer

The BC Supreme Court has just released a key case on the new WESA rules allowing the courts to correct defects in a Will or document that expresses testamentary intention in Estate of Young. Our Vancouver WESA Wills Dispute Lawyers hope people who want their property to be divided properly on their death will pay the modest legal fees to have it done properly. In the past if the Will Maker failed to create a proper Will nothing could be done to fix it but under our new legislation the court can fix some defective “Will like” documents. However, the power to cure defective will like documents will be exercised on a principled basis.

Section 58 of the WESA confers a discretion on the court “fix” a testamentary document to relieve against the consequences of non-compliance with testamentary formalities in a “record, document or writing or marking on a will or document”. Our BC WESA Wills Dispute Lawyers can explain the new rules relating to new rules on undue influence, how unfair wills may be varied and how defective wills or will like documents may be cured by the court to become valid. In this case the executor for the deceased sought clarification of whether two documents found in the deceased’s home dealing with contents and personal effects were legally valid and binding on them. In the end result one of the two documents was found to be able to be “fixed” using the court’s curative powers under WESA section 58.

[1] The Canada Trust Company is executor of the will of Sharone Young, deceased, and intends to apply for probate. Before doing so, however, Canada Trust seeks a determination under s. 58 of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 (the “WESA”), whether certain documents represent Ms. Young’s testamentary intentions. In particular, Canada Trust seeks directions on whether two documents: a. represent Ms. Young’s testamentary intentions, her intention to alter her will or are testamentary dispositions contained in documents other than her will; and b. are effective as though they had been made as part of her will, an alteration to her will or as a separate testamentary disposition.

SECTION 58 OF WESA CAN BE USED TO FIX DEFECTIVE WILLS

[16] The WESA came into force in British Columbia on March 31, 2014. Its enactment represents a significant change in wills and estate administration law in this province. Section 58 is one of the WESA’s most far-reaching remedial provisions. It marks a departure from the traditional principles of formalism that previously governed the creation, alteration and revocation of wills in British Columbia. [17] Section 58 of the WESA is a curative provision. It confers a discretion on the court to relieve against the consequences of non-compliance with testamentary formalities in a “record, document or writing or marking on a will or document”. In prescribed circumstances, s. 58 permits the court to address and cure issues of formal invalidity in such documents. It cannot, however, be used to uphold a will that is invalid for substantive reasons such as testamentary incapacity or undue influence.

What is The WESA Test To Fix Defective Wills?

[34] As is apparent from the foregoing, a determination of whether to exercise the court’s curative power with respect to a non-compliant document is inevitably and intensely fact-sensitive. Two principal issues for consideration emerge from the post-1995 Manitoba authorities. The first in an obvious threshold issue: is the document authentic? The second, and core, issue is whether the non-compliant document represents the deceased’s testamentary intentions, as that concept was explained in George.

[35] In George the court confirmed that testamentary intention means much more than the expression of how a person would like his or her property to be disposed of after death. The key question is whether the document records a deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death. A deliberate or fixed and final intention is not the equivalent of an irrevocable intention, given that a will, by its nature, is revocable until the death of its maker. Rather, the intention must be fixed and final at the material time, which will vary depending on the circumstances.

[36] The burden of proof that a non-compliant document embodies the deceased’s testamentary intentions is a balance of probabilities. A wide range of factors may be relevant to establishing their existence in a particular case. Although context specific, these factors may include the presence of the deceased’s signature, the deceased’s handwriting, witness signatures, revocation of previous wills, funeral arrangements, specific bequests and the title of the document: Sawatzky at para. 21; Kuszak at para. 7; Martineau at para. 21.

[37] While imperfect or even non-compliance with formal testamentary requirements may be overcome by application of a sufficiently broad curative provision, the further a document departs from the formal requirements the harder it may be for the court to find it embodies the deceased’s testamentary intention: George at para. 81.

The new WESA laws are complex and confusing and our clients are already upset by the death of the loved one so our BC WESA Wills Dispute Lawyers will compassionately guide you to a resolution of your BC WESA Will Dispute.

Call our BC WESA Wills Dispute Lawyers across BC toll free at 1-877-602-9900.

Leave a comment