Vancouver WESA Defective Will Lawyers at MacLean Law took note of another defective BC Will being FIXED in the new BC Supreme Court decision of Riguidel Estate (Re) 2017 BCSC 1677. MacLean Law’s Vancouver WESA Defective Will Lawyers operate out of 5 offices across BC located in Vancouver, Surrey, Richmond, Kelowna and Fort St John/Dawson Creek.
Vancouver WESA Defective Will Lawyers explain to our estate litigation clients that there is a powerful new FIXING section of our Wills, Estates and Succession Act called WESA for short when someone prepares a document that isn’t a legal Will. For more general information on WESA and how it applies to you in an unfair Will or estate litigation dispute click here.
Vancouver WESA Defective Will Lawyers 1-877-602-9900
This powerful new section is WESA Section 58 (3). However the section does have limits as section 58 (3) of WESA can only be used to give effect to final, authentic but defective “will like” documents to cure errors concerning formalities but this section cannot cure substantive errors such as testamentary incapacity or undue influence.
If you have a situation where a loved one created a document that you feel expressed their final wishes but it isn’t strictly a Will under the old rules contact us to help you.
Our Vancouver WESA Defective Will Lawyers will help you determine if it can be CURED or FIXED with the powerful new section 58 (3). Specific rules do apply as we detail below.
Vancouver WESA Defective Will Lawyers 1-877-602-9900
Section 58 (3)
58 (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
Vancouver WESA Defective Will Lawyers Section 58(3) New Case
The court reviewed the law and then applied it to cure a defective will like document.
[34] In Young Estate (Re), 2015 BCSC 182, Madam Justice Dickson, as she then was, described some of the factors that should be present when seeking a non-compliant document to represent the deceased’s person’s intention under the curative provisions of s. 58(3) of WESA. In determining the deceased’s final testamentary intentions, Madam Justice Dickson wrote:
[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.
[35] The curative provisions of s. 58(3) of the WESA are fact sensitive.
[36] Extrinsic evidence is permitted in order to determine whether the non-compliant document is the deceased’s final expression, as to his or her testamentary intentions pursuant to s. 58(3) of WESA: Litke Estate (Re), 2017 BCSC 1079 at para. 39.
[37] It comes down to this – whether the document presented was prepared by the deceased and that its contents represent a “deliberate or fixed and final testamentary intention at the material time for the disposition of the estate: Litke Estate (Re) at para. 42.
Vancouver WESA Defective Will Lawyers See Will Cured
DISCUSSION
[38] I am satisfied, on the evidence, that the documents dated February 7, 2016, copies of which are in Appendix 1 to these reasons, are the deliberate expressions of the deceased’s wishes as to the disposition of his property upon his death.
[39] I also find that the handwritten document signed by the deceased and the witnesses, Ms. Leonard and Mr. Kapinus, in the deceased’s presence was to record and confirm that the typewritten document set out the terms of the handwritten document, which reflected the deceased’s intentions before the deceased signed the typewritten document.
[40] It is clear from all of the evidence that the deceased recognized a moral, if not a legal obligation, to his daughter and son-in-law for their contributions to his estate.
[41] I determine that the typewritten document dated February 7, 2016 represents and embodies the deceased’s testamentary intentions sufficient to alter his Will as to the disposition of the assets of his estate and is effective as part of the Will.
