The BC WESA Curative Powers Fixing Defective Wills Lawyers at MacLean Estate Litigation are pleased to see yet another recent example of the growing number of cases where courts use powerful new sections of WESA to uphold legitimate wishes of deceased Will makers. Judges are carefully applying these new sections and providing a wealth of guidance for BC WESA Curative Powers Fixing Defective Wills Lawyers and their clients.
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In a recent decision WESA section 43 was used in a similar way to WESA section 58 to “fix” a bequest to a spouse of a witness to the otherwise properly executed Will.
BC WESA Curative Powers Fixing Defective Wills Lawyers
1) What happens when a deceased signs a defective document he says is his Will and confirms orally it is his true and final intention of how he wishes his estate to be passed on?
2) What happens when he makes a gift to a spouse of one of the witnesses before WESA was guaranteed to make the gift to the spouse of the witness invalid?
The recent case of Bach Estate (Re), 2017 BCSC 548 shows the “curative” and “fixing” powers the courts now have when A will is not in strict compliance with traditional Will recognition rules.
BC WESA Curative Powers Fixing Defective Wills Lawyers and WESA Sections 43 and 58
Our BC Curative Powers Fixing Defective Wills Gifts Lawyers historically told unhappy beneficiaries before WESA that the deceased intentions would not be able to be followed in cases of defective Wills or merely written statements evidencing their estate wishes on death whether hard copy or digital.
But now our BC Curative Powers Fixing Defective Wills Gifts Lawyers can provide some solace to potential beneficiaries because a powerful new, namely section 58 of WESA allows for some kinds of defective Wills or other documents to be cured or fixed. So what are the rules? Section 58 is the more commonly used section for Wills that have some serious defects in form but what if an otherwise proper Will has a witness related defect? Well, this situation has its own special section in WESA in Section 43.
In Bach the judge upheld the Will despite it being witnessed by the spouse of the sole beneficiary of the Will.
Here are the background facts:
[1] Terrence (“Terry”) Bach passed away on September 10, 2014. The evening before he died, he signed a document in which he left his entire estate to his sister Sharon Thibodeau.
[2] This is an application by Sharon Thibodeau for an order that the document be declared a valid will pursuant to s. 37(1) and s. 58 of the Wills, Estates and Succession Act, SBC 2009 c. 13 (“WESA”) and that the gift under the will be declared valid pursuant to s.43(4) of the WESA.
[3] Ms. Thibodeau seeks, in the alternative, an order that the document be declared fully effective as if it had been made as an alteration to an earlier will dated October 27, 2006 pursuant to s. 58(3) of the WESA.
[4] The respondent, Mr. Bach’s stepdaughter Jamie Veres, has put into issue the testamentary capacity of the deceased.
[5] Mr. Bach was predeceased by his wife who died in 2006.
[6] He was survived by one natural child, Sally Parrott and two stepchildren, Jamie Veres and Jody Bruce Cameron. Mr. Bach had three sisters: Sharon Thibodeau, Diane Vanderburg and Joan Barker.
Problem With The Will In Bach Explained By BC WESA Curative Powers Fixing Defective Wills Lawyers
[29] WESA, which came into effect on March 31, 2014, contains a new provision in s. 58 that even if a document fails to comply with the formalities of the statute, a court may nonetheless order that the document is fully effective as if it had complied with the statute.
[30] Accordingly, s. 58(3)(a) empowers the court to order that a document or other record is fully effective as the will of a deceased person if the court is satisfied that the document represents the testamentary intentions of that deceased person.
[48] The difficulty arises from s. 43(1):
43(1) Unless a court otherwise declares under subsection (4), a gift in a will is void if it is to
(a) a witness to the will-maker’s signature or to the spouse of that witness,
(b) a person signing the will by the will-maker’s direction, or the spouse of the person signing, or
(c) a person claiming under a person, other than the will-maker, referred to in paragraph (a) or (b).
[49] One of the witnesses to this will was Mr. Thibodeau, the husband of the beneficiary under the will.
BC WESA Curative Powers Fixing Defective Wills Lawyers – New BC Section 58 and 43
The Judge reviewed the power to fix a properly made Will that contained a formerly fatal witness defect that would in the past have voided the bequest to the spouse of a witness to the Will. Here is how the Judge dealt with the problem being carmeful to ensure there was evidence that the document was the final and certain intent of the deceased as to his wishes for his estate:
[51] However, on March 31, 2014, WESA came into force. Under this new legislation, gifts made in these circumstances are still presumptively void however, the court now has the discretion to declare them valid under s. 43(4):
- (4) On application, the court may declare that a gift to a person referred to in subsection (1) is not void and is to take effect, if the court is satisfied that the will-maker intended to make the gift to the person even though the person or his or her spouse was a witness to the will.
[54] The same inquiry is relevant under s. 43(4). Watchuk J. continued:
Evidence
[31] As a preliminary matter, the statements that Ms. Yaremkewich made to the various affiants and the other evidence of her intention in the affidavits are admissible evidence in this case.
[32] The approach to evidence under Manitoba’s Wills Act, R.S.M. 1988, c. W-150 was summarized by Philp, J.A. in Langseth Estate v. Gardiner (1990), 75 D.L.R. (4th) 25 at 33 (Man. C.A.)
The general rule that extrinsic evidence is not admissible in construing a will (the function of a court of construction) does not apply to the probate court whose duty is to determine whether a document is a valid will. Extrinsic evidence is admissible on the question of testamentary intent, and the Court is not limited to the evidence that an inspection of the document provides.
Testamentary Intent
[33] The s. 58 curative provision was well summarized in Estate of Young, 2015 BCSC 182 [Young]. This provision is one of WESA’s “most far-reaching remedial provisions”, and it represents a marked departure from the traditional, formalistic approach to the creation of wills (at para. 16). It confers the court with a broad discretion to treat a testamentary record as valid even if it does not comply with the formalities of the statute. However, this provision can only be used to cure errors concerning formalities, and cannot cure substantive errors such as testamentary incapacity or undue influence (at para. 17).
[34] To apply s. 58, the applicant 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: Young at paras. 19, 36; and Bunn Estate (Re) (1992) 100 Sask. R. 231 at 237 (C.A.) [Bunn Estate]. This analysis asks whether the court is satisfied that the document records the will-maker’s deliberate or fixed and final expression of intention as to the disposal of her property upon death. This was summarized in Young as follows:
[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.
[Emphasis added.]
BC WESA Curative Powers Fixing Defective Wills Lawyers – Will Cured!
[63] On all the evidence, I am satisfied that the document executed on September 9, 2014 amounts to a will and represents Mr. Bach’s testamentary intent. The gift is not void.
