Curing an “Invalid Will”: Section 58 of WESA

By Parveen Shergill

The new wills legislation in BC, the Wills, Estates and Succession Act, SBC 2009, c 13 (“WESA”) came into force on March 31, 2014. WESA establishes certain formal requirements for a will to be considered valid, as well as a curative provision for a will that does not satisfy the formal requirements.

Formal Validity

The “formal requirements” set out in WESA, at s. 37, are summarized below:

  1. it must be in writing;
  2. it must be signed at its end; and
  3. it must be properly witnessed.

Under the pre-WESA regime, a will that did not meet the formal requirements for validity was considered invalid and that was the end of the inquiry. One of the interesting features of WESA is the curative provision in s. 58, which allows the Court to “cure” a record, document or writing or marking on a will or document that does not satisfy these formal requirements.

Section 58: The “Curative Provision”

In order for s. 58 to apply, the Court must be satisfied that the instrument in question represents:

  1. the testamentary intentions of a deceased person,
  2. the intention of a deceased person to revoke, alter or revive a will or testamentary disposition of the deceased person, or
  3. the intention of a deceased person to revoke, alter or revive a testamentary disposition contained in a document other than a will.

Now that s. 58 has been in force for over two years, we have some guidance from our Courts as to how it applies.

Case Law Applying s. 58

In Re Young Estate, 2015 BCSC 182, Madam Justice Dickson looked to other provinces’ wills legislation, noting that s. 58 of WESA is most similar to Manitoba’s equivalent (The Wills Act, CCSM c W150, at s. 23).

After canvassing the Manitoba case law, Dickson J. observed that the inquiry for a s. 58 application is “inevitably and intensely fact-sensitive” and requires the court to consider the following:

  1. The threshold question: is the document authentic?
  2. The core question: does the document represent the deceased’s testamentary intentions?

With respect to the “core question”, Dickson J. provided the following guidance:

35 …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…

37 … 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…

In Beck Estate, 2015 BCSC 676, an executor of a will brought an application for determination of whether handwritten alterations to a will and codicil represented the testator’s testamentary intentions. Master B.M. Young (as she then was) found that the wording “Codicil to my last will” and the words “To be read out by My Lawyer, Mr. Mote” satisfied the criterion for showing a deliberate or fixed and final expression of intention. However, the alterations to the testator’s will, which consisted of an interlineation changing the word “codicil” to “Codicil Enclosed” were not sufficiently clear to meet the test under s. 58.

In Re Yaremkewich Estate, 2015 BCSC 1124, the deceased left an envelope with the words “Will of Denise Lynn Bevan Yaremkewich” written on the outside of it, in the deceased’s handwriting. The envelope contained a will and three separate documents – a handwritten list of bequests titled “Bequests (Personal)”; a handwritten list of charitable bequests titled “Charitable Bequests”; and care instructions for the deceased’s dog, titled “Jake Bevan (the dog)”.

With respect to the will, Madam Justice Watchuk found that it satisfied the requirements under s. 58 because the “detailed wording of the Will and its attachments, and the circumstances in which they were found” militated in favour of a determination that the will was valid, based on the following:

  1. evidence from witnesses who indicated that the deceased was contemplating specific bequests at the time that she arranged for witnesses to her will;
  2. the deceased was ill at the time she made her will and wanted to put her affairs in order;
  3. the deceased used a will template rather than an ordinary piece of paper;
  4. the four documents in question were treated as important by being placed in an envelope and marked as the deceased’s will;
  5. the deceased attempted to comply with the formalities of making and executing a will, by signing and dating it at the end and initialling many of the pages and by having two witnesses sign;
  6. the deceased appointed executors;
  7. many of the provisions are detailed and well thought out, such as the appointment of a lawyer as an alternate executor, the making of alternative gifts if certain beneficiaries predeceased her, and bequests to minors not being made until they reach the age of 21;
  8. there were no changes or markings in the documents that could suggest they were merely drafts or were not meant to be fully effective; and
  9. there was no evidence to the contrary or suspicious circumstances.

Watchuk J. was satisfied that the documents were authentic and had been written by the deceased.

With respect to the two lists of bequests, Watchuk J. found that it was likely that the documents were created around the time of the will. Since the will form that the deceased used was only three pages long and she filled in nearly all of the blank space provided in the template, the deceased needed to include additional pages. In the will itself, the deceased referred to attachments and then placed all of the documents together in an envelope titled “Will of Denise Lynn Bevan Yaremkewich”. Given the context, Watchuk J. held that the deceased intended for the lists to operate alongside the will. Both of the lists were held to be testamentary in nature and therefore met the requirements of s. 58.

On the other hand, the care instructions for the deceased’s dog were determined not to be testamentary and not within the curative power of s. 58.

In Re Lane Estate, 2015 BCSC 2162, Mr. Justice Pearlman was faced with multiple handwritten notes that had been found throughout the deceased’s house. Although the notes were authentic, they did not satisfy the threshold for testamentary intent. Pearlman J. stated:

48 … I give particular weight to the absence of any witnesses, the fact that all of the notes were made on scrap paper, the absence of any express revocation of the Will or the gift of one-half of the residue to Ms. Alsop, the lack of any evidence the deceased had any rational basis for disinheriting Ms. Alsop, and indeed the lack of any evidence that the deceased ever turned her mind to how the wishes she expressed in the notes would affect her earlier testamentary dispositions.

In Re Smith Estate, 2016 BCSC 350, Madam Justice Fleming applied s. 58 to cure three separate documents representing testamentary intent. The deceased had met with her son and spouse prior to her death to discuss her will. She presented them with three handwritten documents entitled “The Will of Lorraine Smith”, dated 2008; “The Final Will and Testament of Lorraine Smith”, dated 2011; and “Funeral Arrangements”. Fleming J. was satisfied the documents recorded a “deliberate or fixed and final expression of the deceased’s intention regarding disposal of her property on death”, based on the following factors:

  1. the presence of the deceased’s signature on each document;
  2. the titles of the documents;
  3. the contents of the documents (a list of personal items to specific beneficiaries and specific distribution of her real property on the event of her death);
  4. the documents are expressed in language conveying an “air of finality”;
  5. the fact that the deceased met with her son to discuss her will and presented him with the documents, advising that she had drafted the documents herself and that she had signed the first two;
  6. the deceased met with her granddaughter (the applicant) and asked her to be the executor;
  7. the deceased advised the applicant that all of the necessary documents would be found in a funeral box she had prepared and after her death the applicant found the documents in the funeral box; and
  8. there were no other documents setting out the deceased’s testamentary intentions.

Most recently, s. 58 was considered in Re Hadley Estate, 2016 BCSC 765. In 2008, the deceased had her lawyer prepare a will (referred to in the decision as the “2008 Will”). In 2014, the deceased had drawn up another will in her journal, purporting to change the 2008 Will (referred to in the decision as the “2014 Will”).

There was no question that the 2008 Will satisfied the formal requirements and could constitute a valid will without applying s. 58. However, the 2014 will purported to alter the 2008 Will and Madam Justice Adair was faced with the question of which of the documents constituted the deceased’s true will (or if both applied together).

Adair J. considered a wide range of factors, including how close the 2014 Will came to satisfying the formal requirements for a valid will and the circumstances surrounding the deceased’s drafting of the will. After weighing all of the factors, Adair J. concluded that the 2014 Will did not represent a “deliberate and final expression” of the deceased’s testamentary intention:

[59] In reaching that conclusion, I place particular weight on the following factors.

[60] Ms. Hadley did not disclose the existence of the 2014 Will to anyone. In her dealings with both Ms. Smith and Mr. Walker, she communicated that she wished to make changes to her 2008 Will. She did not say anything to either of them to the effect that she had already made a new will. Ms. Hadley’s notes on the original and copy of the August 28, 2014 letter, expressing a desire to make a new will, are inconsistent with the 2014 Will representing her testamentary intentions. Ms. Hadley knew what was involved in making new a will, and she expected to communicate the changes she wanted to make to a lawyer, who would prepare a new will for her. The changes (unlike the contents of the Journal) were not going to be kept secret. She took steps to make an appointment with Mr. Walker in respect of changing her 2008 Will. For Ms. Hadley, the contents of the Journal were quite different from a will. They were notes only to herself. Finally, Ms. Hadley had a very large estate, one that could certainly accommodate generous gifts to Mr. Macdonald and Mr. Pierce, without completely disinheriting the beneficiaries (other than Ms. Maziak) under her 2008 Will. [Emphasis in Original]

The 2014 Will appeared to be a set of instructions (perhaps even draft instructions that would ultimately be changed) which the deceased intended to provide to her lawyer who would prepare a new will. In the result, the 2008 Will governed and the 2014 Will was not “cured” by s. 58.

Conclusion

As illustrated by the case law, s. 58 does not attempt to re-introduce holograph wills or the old “napkin will”. The closer an instrument comes to satisfying the formal requirements for a valid will, the greater the chances a Court will apply s. 58 to “cure it”.

Although s. 58 can prevent the situation where a testator’s intentions are defeated simply because of a mere failure to satisfy all of the formal requirements, relying on s. 58 is risky because the outcome of such applications is uncertain. Neither s. 58 nor any other provision in WESA can replace a solid estate plan.

Your lawyer can work with you to prepare an estate plan that carries out your testamentary intentions; prevents the need for judicial intervention to determine your wishes; and maximizes your estate value by minimizing tax liability and probate expenses.