Vancouver defective will lawyers at top-rated* MacLean Estate Litigation advise you not to overlook any document left by the deceased that expresses his/her testamentary intentions even though it is not witnessed or even signed. Vancouver defective will lawyers know that new rules, under section 58 of the new Wills, Estates and Succession Act (WESA for short), say that certain pieces of paper can be held by the court as a valid will and make a tremendous impact on your life.
If this reminds you of a document in your possession, please contact us at 1 877 602 9900 now and let our Vancouver defective will lawyers determine your chances of turning that document into a life-changing will.
Section 58 of WESA
Vancouver defective will lawyers explain that The Wills, Estates and Succession Act (WESA for short) is the predominant statute governing issues related to (as the name suggests) wills and succession of estates in B.C. I Vancouver defective will lawyers explain to clients that it came to force in March of 2014 and the new Act represents a significant change in wills and estate administration law in this province.
Vancouver Defective Will Lawyers
One of the most significant and far-reaching changes our Vancouver defective will lawyers note is found in section 58, which, in a nutshell, makes it possible for a document that otherwise lacks in formalities required of a will (signature, witnesses etc.) to be declared as a valid will and given effect as such.
Here is what s.58 says:
Court order curing deficiencies
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.What are My Chances To Fix The “Will”? Testamentary Intention is Key
In Estate of Young, 2015 BCSC 182, a decision handed down by the B.C. Supreme Court on February 6, 2015, the court gives a detailed analysis of how s.58 of WESA works after a thorough comparison between the WESA and its counterpart in Manitoba, where the court’s curative power in relation to wills is more established partly thanks to the leading authority George v. Daily (1997) (“George”). The B.C. court concludes:
[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.
MacLean Law is here to help
Vancouver defective will lawyers know that it is apparent from above that one has to overcome a rather high threshold to convince the court to evoke its curative power and give legal effects to a document that would otherwise remain just another piece of paper for its deficiency in formalities.
Vancouver defective will lawyers are ready to assist you if you believe you have a document that does not comply with formal requirements but nonetheless represents the deceased’s testamentary intentions, you should consult lawyers that are experienced in estate litigation and protect your rights at the earliest possible opportunity.
MacLean Law is highly experienced in estate litigation. We handle complex, high-profile estate litigation files involving multi-million dollars on a daily basis.
Call us toll-free at 1 877 602 9900, and we’ll be happy to assist you with your estate litigation matter in one of our six offices across B.C. and in Calgary.
