Fixing a Defective Will
The recent case of Re Cook Estate 2019 confirms the two-part test for considering applications to cure a defective will under Section 58 of the Wills, Estates and Succession Act (WESA). In this short article we look at the purpose of this section and what evidence the court may consider when asked to exercise its discretion to fix a defective will.
Section 58 of WESA provides a broad curative provision. It provides the court with the discretion to validate a document which has not been made in compliance with the formalities of will-making found in Section 37 of the WESA, and allow it to be admitted into probate, if satisfied that the document “represents the testamentary intentions of the will-maker”. The purpose of this remedial provision is to avoid the defeat of a will-maker’s genuine intentions due to a technical defect.
Defects that may invalidate a will
Such technical defects may be the lack of a signature on the part of the will-maker or the lack of witnesses. WESA does not set out a specific list of defects the courts are prepared to cure. However, the further the document purported to be the will deviates from the formalities required for a will, the greater the risk the court will decline to use its discretion and cure the defect.
In considering an application to cure a will under Section 58, the court must consider the applicable test set out in that section which comprises two main parts: (1) whether the records, documents or writing is “authentic” and (2) whether the records, document or writing represents the deliberate or fixed and final intention of the deceased person (Hadley Estate, 2017). Such questions are decided by the court on a balance of probabilities and is ‘intensely fact-specific’ (Re Cook Estate, 2019). In reaching its conclusion the court may consider a wide array of evidence to determine testamentary intention. The Court of Appeal has approved the following passage from Estate of Young which is helpful.
“… 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 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.”
In keeping with the highly fact dependent nature of such a determination the court will consider the circumstances in which the document came into being, the timing of its creation, whether the author had testamentary capacity (the mental ability to form a testamentary intention) and all other relevant evidence presented to the court.
Kill or cure?
Of course, not everyone involved may want the document to be cured and declared to be the last will. A note written shortly before death may purport to dispose of the testator’s estate to individuals not previously named as beneficiaries in a will. While the new beneficiaries may fight hard to have this document cured and recognized as the final will, those who have lost out or who are taken by surprise at the new terms may strenuously object. If there is a disagreement between beneficiaries as to whether the document was meant to be the deceased’s final will, the matter may be determined through the process of litigation and ultimately trial.
Angela Price-Stephens is an English and Canadian lawyer who has 25 years’ experience as a litigator of complex and challenging claims. Whether you are disinherited, a personal representative contemplating litigation or facing a claim brought by a beneficiary, Angela is here to provide cost effective, practical legal advice.
For more information on this article, or for confidential discussion of your claim, contact Angela Price-Stephens at 250 869 1124, or send her a confidential email at email@example.com.