White-out Of Beneficiary’s Name – An Effective Disinheritance?
In the recent case of Levesque Estate (Re), 2019 BCSC 927 Justice Gomery considered whether the beneficiary, whose name was obscured by white-out, was effectively disinherited. The Deceased’s Will, dated 2009, left her estate to be divided equally between her six children and her eldest grandchild, Ms. Nixon. When the Will was read after death in 2018 however it was found that Ms. Nixon’s name had been “whited out”.
Section 54 of Wills, Estates and Succession Act (WESA) requires that an alteration made after the Will was executed must be signed by the Will maker, whose signature must be witnessed by two witnesses, in the presence of each other and in the presence of the will maker. These requirements may be avoided if the alteration is not substantial, if the alteration has made a word or provision illegible or if the alteration is made effective by an order of the court under section 58 of WESA. In the case of Levesque, the beneficiary’s name was still legible if the Will was held up to the light, notwithstanding the name being completely covered with white-out (“the Alteration”).
The court reviewed the evidence relating to how, when and in what circumstances the Will had been drafted, how the document had been stored for safe keeping (including who likely had access to the Will) and the possible explanations as to why the Deceased may have chosen to cut Ms. Nixon out of her Will, after it had been executed. Evidence was considered from several witnesses, including one the court identified as being entirely independent, that the Deceased had been upset with her granddaughter “eloping” and marrying her boyfriend in Thailand. This evidence was disputed by Ms. Nixon who stated that she had told her grandmother of the wedding plans and that her grandmother had expressed her approval and gave her money as a wedding gift.
The Judge noted that his task in the civil proceedings was to “come to conclusions on a balance of probabilities, that is, to decide what most probably occurred.” On careful assessment of the evidence Mr. Justice Gomery found that it was likely the Deceased who had made this Alteration and it was the deliberate and final expression of the Deceased’s intention to remove her granddaughter from the Will.
 Carefully dabbing white-out over the provision in question was undoubtedly a considered and deliberate act on the part of the Deceased. She was applying the white-out to the original Will. It was not a casual act. The only reasonable inference is that her intention was to remove the provision from the Will.
 If the Deceased applied the white-out in the immediate aftermath of learning of Ms. Nixon’s marriage, she took no steps to reinstate or unrevoked the gift to Ms. Nixon after that. She maintained an affectionate relationship with Ms. Nixon, giving her a marriage gift and congratulating her on her marriage to a “a good hard-working man”. It may be that she no longer felt that Ms. Nixon needed special provision as she had felt nine years earlier. This is speculation. The facts I am left with are that the Deceased made the Alteration deliberately, in the knowledge that she was altering the original Will, with the intended effect that Ms. Nixon was removed as Beneficiary.
This was a case brought before the court by the executors who, under a duty to act fairly to all beneficiaries and uphold the terms of the Will, sought guidance from the court.
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.