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Wills, Estates and Succession Act - Is the Document Compliant?

September 14, 2021

British Columbia

,

Canada

Issue

Is a separate letter gifting money valid if the writer died testate?

Conclusion

Section 58 of the Wills, Estates and Succession Act is a curative provision. It confers a discretion on the court to relieve against the consequences of non-compliance with testamentary formalities in a "record, document or writing or marking on a will or document". In prescribed circumstances, s. 58 permits the court to address and cure issues of formal invalidity in such documents. It cannot, however, be used to uphold a will that is invalid for substantive reasons such as testamentary incapacity or undue influence. (Estate of Young)

The court must be satisfied that a document represents the testamentary intentions of the deceased before granting an order that it is fully effective as a will pursuant to s. 58(3) of the Wills, Estates and Succession Act. If such an order is made, the testamentary document may be admitted to probate. (Wills, Estates and Succession Act)

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. 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. (Estate of Young)

Sitting as a court of probate, the court’s task on a s. 58 inquiry is to determine, on a balance of probabilities, whether a non-compliant document embodies the deceased’s testamentary intentions at whatever time is material. The task is inherently challenging because the person best able to speak to these intentions – the deceased – is not available to testify. In addition, by their nature, the sorts of documents being assessed will likely not have been created with legal assistance. Given this context and subject to the ordinary rules of evidence, the court will benefit from learning as much as possible about all that could illuminate the deceased’s state of mind, understanding and intention regarding the document. Accordingly, extrinsic evidence of testamentary intent is admissible on the inquiry. (Hadley Estate (Re); Henderson v Myler)

The following principles are relevant in an application under s. 58 of the Wills, Estates and Succession Act:

1. The standard of proof on an application under the curative provision is proof on a balance of probabilities;

2. The greater the departure from the requirements of formal validity, the harder it may be for a court to be satisfied that the document represents the deceased’s testamentary intention;

3. The requirements for formal validity of a will serve several functions, including:

i. an evidentiary function by providing the court with reliable and permanent evidence of testamentary intention and the terms of the will; and

ii. a cautionary function by impressing upon the testator the solemnity, finality, and importance of his actions in making his “last will and testament;

4. The evidentiary and cautionary functions are particularly relevant to the determination of whether or not a writing or document embodies the testamentary intentions of a deceased;

5. Not every expression made by a person, whether orally or in writing, concerning the disposition of his or her property on death embodies his or her testamentary intentions. (Henderson v Myler)

In Estate of Young, the deceased left a will, where she named Canada Trust as the executor of the Will. After the deceased's death, an employee of Canada Trust attended the deceased's home and found two documents on her dining room table. The first was a signed document dated June 17, 2013 (the "June 17 Document"). The second was an unsigned document dated October 15, 2013 (the "October 15 Document"). The June 17 document detailed the distribution of personal items to certain beneficiaries. The October 15 document stated that the two youngest beneficiaries were to have the first choice of unnamed items. The October 15 document was not signed. Dickson J. found that the June 17 document represented the deceased's testamentary wishes, and therefore was as effective as though it had been made part of the will, while the October 15 document did not. It was particularly telling that the June 17 document was signed, and an unsigned copy was provided to a friend of the deceased to help her carry out her final wishes. The October 15 document was not signed and was styled more like a letter than a testamentary document.

In Lane Estate, the deceased had a Last WIll and Testament dated July 1994. The deceased left seven handwritten notes between April 14, 2012 and January 9, 2015. The executor sought a determination, pursuant to s. 58 of the Wills, Estates and Succession Act, whether the notes represented the intention of the deceased to alter her Last Will and Testament. The notes appeared to be in the deceased's handwriting. Pearlman J. found that the notes did not represent the deliberate and final expression of the deceased's testamentary intentions. Pearlman J. gave 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 Henderson v Myler, the deceased left a will dated January 25, 2013 (the “2013 Will”). Under the terms of the 2013 Will, the BC Society for the Prevention of Cruelty to Animals (“SPCA”) was to receive the remainder of the residue of the deceased's estate, after payment of certain specific gifts to certain members of the deceased’s extended family. The gifts to family members, and to the BC SPCA, were all contained in provisions in the 2013 Will titled “Rest and Residue”. The 2013 Will was located in the deceased home in a lockbox. The 2013 Will was accompanied by a handwritten note written on a page from a yellow notepad (the “Note”). The Note purported to increase the specific amounts payable to certain of the family members named in the 2013 Will; delete gifts to other family members; add a specific gift to John Basich, one of Ms. Murray’s friends; and change the gift to the BC SPCA from the remainder of the residue, estimated to be $1.4 million, to $100,000. The specific gifts reflected in the Note did not exhaust Ms. Murray’s estate. As a result, if the Note is a valid testamentary instrument, the balance of Ms. Murray’s estate passes on an intestacy to the four plaintiffs. MacNaughton J. set out the relevant factors that supported and did not support a finding that the note represented the deceased's final intentions. MacNaughton J. ultimately held that leaving $1.3 million to pass intestate indicated that the note did not represent the deceased's fixed and final intentions

In Van De Bon Estate (Re), the deceased executed a will dated January 2013. The executor of the estate brought a petition, pursuant to s. 58 of the Wills, Estates and Succession Act, for a determination of whether documents apparently signed by the deceased, represent the testamentary intentions of the deceased. Though Ball J. had no difficulty in finding that the documents were created by the deceased, the notes did not contain language providing for the revocation of the 2012 Will and did not contain the necessary formalities of someone who was aware of the statutory elements of a will. Ball J. was satisfied that the 2012 Will should be admitted to probate, without any of the additional contents of any of the notes.

Law

Section 58 of the Wills, Estates and Succession Act, SBC 2009, c 13 provides authority for the court to make an order curing deficiencies of a record, document or writing, or marking on a will or document, as follows:

Court order curing deficiencies

58 (1)In this section, "record" includes data that

(a)is recorded or stored electronically,

(b)can be read by a person, and

(c)is capable of reproduction in a visible form.

(2) On application, the court may make an order under subsection (3) if the court determines that a record, document or writing or marking on a will or document represents

(a)the testamentary intentions of a deceased person,

(b)the intention of a deceased person to revoke, alter or revive a will or testamentary disposition of the deceased person, or

(c)the intention of a deceased person to revoke, alter or revive a testamentary disposition contained in a document other than a will.

(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.

(4) If an alteration to a will makes a word or provision illegible and the court is satisfied that the alteration was not made in accordance with this Act, the court may reinstate the original word or provision if there is evidence to establish what the original word or provision was.

In Estate of Young, 2015 BCSC 182 (CanLII), Dickson J. considered s. 58 of the Wills, Estates and Succession Act, and reviewed the Manitoba authorities interpreting a similar provision, as follows:

[16] The WESA came into force in British Columbia on March 31, 2014. Its enactment represents a significant change in wills and estate administration law in this province. Section 58 is one of the WESA's most far-reaching remedial provisions. It marks a departure from the traditional principles of formalism that previously governed the creation, alteration and revocation of wills in British Columbia.

[17] Section 58 of the WESA is a curative provision. It confers a discretion on the court to relieve against the consequences of non-compliance with testamentary formalities in a "record, document or writing or marking on a will or document". In prescribed circumstances, s. 58 permits the court to address and cure issues of formal invalidity in such documents. It cannot, however, be used to uphold a will that is invalid for substantive reasons such as testamentary incapacity or undue influence.

[...]

[19] The court must be satisfied that a document represents the testamentary intentions of the deceased before granting an order that it is fully effective as a will pursuant to s. 58(3) of the WESA . If such an order is made, the testamentary document may be admitted to probate.

[20] Prior to enactment of s. 58 of the WESA, British Columbia was a "strict compliance" jurisdiction with respect to formalities for creating, altering, or revoking a will. Since its enactment, this province has joined the ranks of other Canadian jurisdictions with curative provisions in their wills and estate administration legislation. These include Alberta, Saskatchewan, Manitoba, Quebec, New Brunswick and Prince Edward Island.

[21] In some Canadian jurisdictions, the curative provision in force requires substantial compliance with traditional formalities. Unlike those provisions, however, Section 58 of the WESA does not specify a minimal level of execution or other formal requirement for a testamentary document to be found fully effective. Section 58 is most similar in this respect to Manitoba's current curative provision: s. 23 of the Wills Act, C.C.S.M. c. W150 (the "WA").

[...]

[24] The leading authority on the court's curative power is George v. Daily (1997), 1997 CanLII 17825 (MB CA), 143 D.L.R. (4th) 273 (Man. C.A.). In George, the trial court found that a letter written by the deceased's accountant was a valid will pursuant to s. 23 of the WA. The deceased had informed his accountant of desired revisions to his existing will and the accountant wrote a letter the next day in relation to these instructions. The letter was sent to the deceased's lawyer, who confirmed the instructions with the deceased less than two weeks later. However, a new will was not promptly executed because the lawyer requested that the deceased first obtain a certificate of medical competency. The deceased died two months later. There was no evidence that a new will was drafted or that the deceased attempted to obtain the requested medical certificate.

[25] The Manitoba Court of Appeal allowed an appeal from the trial judge's order. In doing so, the court found that the accountant's letter did not reflect the deceased's testamentary intentions. While third party documents are not excluded from s. 23 of the WA, at para. 67 Philp J.A. stated the "court must be satisfied that the deceased knew and approved of the contents of the document which is presented for probate". On the facts found at trial, however, it was unclear if the deceased knew of the existence or contents of the accountant's letter and it was clear that he intended for his lawyer to make the new will. The court noted in this regard that testators often change their minds and remarked that, at best, the letter was instructions for the new will's preparation.

[26] Philp J.A. clearly explained the limits placed on the court's curative powers in his reasons for judgment. At paras. 62 and 65, he stated:

Not every expression made by a person, whether made orally or in writing, respecting the disposition of his/her property on death embodies his/her testamentary intentions…

The term "testamentary intention" means much more than a person's expression of how he would like his/her property to be disposed of after death. The essential quality of the term is that there must be a deliberate or fixed and final expression of intention as to the disposal of his/her property on death [citations omitted ]

[27] In Kuszak v. Smoley, 1986 CanLII 4996 (MB QB), [1986] M.J. No. 670 (Q.B.), a partially-printed and partially-handwritten document signed by the deceased but not witnessed was found to reflect the deceased's testamentary intentions. The court relied on several factors in making this determination, including:

(1) the document was in the deceased handwriting;

(2) the document was signed by the deceased in four places;

(3) the date was in four places;

(4) the printed portion identified the document as a will and was properly filled out; and

(5) there was nothing before the Court refuting the conclusion that the document embodied the deceased's intentions.

In these circumstances, the handwritten document was validated pursuant to s. 23 of the WA.

[28] A document similar to that in Kuszak was considered in McNeil v. Snidor Estate, 2008 MBQB 187. In McNeil, there were several testamentary documents executed prior to the document at issue, which was a will form filled out in the deceased's handwriting. Prior to filling out the form the deceased had his childhood friend witness the blank form. The other witness did not see the deceased sign the completed form.

[29] After referring to the Kuszak factors, the court in McNeil determined that the will form embodied the deceased's testamentary intentions and should be admitted to probate under s. 23 of the WA. This determination was based on the following factors:

(1) the deceased revoked his earlier Last Will and Testament and the specific dispositions therein, expressed his intent in respect of who should not receive the proceeds of his estate and disposed of the residue of his estate;

(2) the document appointed an executor and provided him with instructions for the management of the estate including funeral and burial arrangements;

(3) the document is entitled "Will" on the top of the first page;

(4) each blank space on the form, with the exception of the final space for the second witness and one space (where the name of the executor appears instead of the name of the testator) was completed properly in the deceased's handwriting;

(5) the deceased signed the second and third page of the Will; and

(6) the deceased had a witness sign the document, albeit at a later date.

[30] In Martineau v. Myers Estate, 1993 CanLII 15094 (MB QB), [1993] M.J. No. 339 (Q.B.), the court considered whether a holograph will written in the deceased's handwriting could be validated under s. 23 of the WA. It determined that the document reflected the deceased's testamentary intentions as the document was titled "Harold Myer's Will", was written entirely in the deceased's handwriting and set out where the deceased's furniture was to go. The court also found that the presence of changes, deletions and a question mark did not indicate an unsettled mind and the name portion of the title at the beginning of the document was a signature because the style matched the deceased's normal signature. In these circumstances, the holograph will was validated under s. 23 of the WA.

[31] Sawatzky v. Sawatzky, 2009 MBQB 222, concerned an application for an order under s. 23 of the WA for an unsigned typewritten document drafted by the deceased's lawyer to be fully effective as the deceased's will. The document was entitled "Last Will and Testament" and was dated two days before the deceased passed away. Four other testamentary documents were also located. These included a valid holograph will which would be operative if the document at issue was not admitted to probate.

[32] Following a cancer diagnosis, the deceased brought the holograph will to his lawyer for the purpose of having a formal will prepared in essentially the same terms. The lawyer typed up the will with one change to the form of executorship and brought the typewritten document to deceased, who, at that point, was hospitalized. The deceased informed his lawyer that he wanted to make several changes to the will and the lawyer noted these changes on his copy of the typewritten document. The lawyer returned the next day with the updated document but the deceased had passed away before he could sign it. The updated typewritten document was the document at issue.

[33] The court dismissed the application in Sawatsky and declared the holograph will valid. In doing so, it relied extensively on George. There was no evidence that the deceased reviewed the typewritten document in its updated or earlier form, which was a significant factor for consideration. In addition, although the lawyer testified that the updated typewritten document reflected the deceased's testamentary intentions, his testimony was not determinative and the deceased, who was not facing imminent death, did not tell his lawyer that his instructions were final or would not be changed. Further, the lawyer had made changes to the executorship portion of the document without instructions, so the document did not reflect the deceased's intentions in at least one aspect.

Dickson J. summarized the two fact-sensitive inquiries under s. 58 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.

[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.

The deceased left a will, where she named Canada Trust as the executor of the Will. After the deceased's death, an employee of Canada Trust attended the deceased's home and found two documents on her dining room table. The first was a signed document dated June 17, 2013 (the "June 17 Document"). The second was an unsigned document dated October 15, 2013 (the "October 15 Document"). The June 17 document detailed the distribution of personal items to certain beneficiaries. The October 15 document stated that the two youngest beneficiaries were to have the first choice of unnamed items. The October 15 document was not signed. Dickson J. found that the June 17 document represented the deceased's testamentary wishes, and therefore was as effective as though it had been made part of the will, while the October 15 document did not, for the following reasons:

The June 17 Document

[38] I am satisfied on the evidence that the June 17 Document records Ms. Young's deliberate expression of her wishes as to the disposal of the listed property on her death. It contemplates distribution of that property to specific beneficiaries on the event of death and employs language which conveys an air of finality. In addition, the June 17 Document is generally consistent with other provisions in Ms. Young's Will, although not perfectly so as it was prepared after the Will was executed and not left together with it.

[39] The fact that Ms. Young signed the June 17 Document is particularly telling for present purposes. I find that, in so doing, she signalled her knowledge and approval of its contents. I also infer that, shortly before she died, Ms. Young placed the signed copy on her dining room table so that it would be found by others. This, too, is telling with respect to her intentions.

[40] The signed copy of the June 17 Document is identical to the unsigned copy Ms. Young provided to Ms. Sunderland when she sought her assistance in carrying out her final wishes. In all of the circumstances, I am satisfied, on a balance of probabilities, that it is both final in the sense contemplated by the authorities and authentic.

[41] Given the foregoing, I determine that the June 17 Document represents and embodies Ms. Young's testamentary intentions. Accordingly, I order that the June 17 Document is fully effective as though it had been made as part of the Will.

The October 15 Document

[42] I am not satisfied on the evidence that the October 15 Document records Ms. Young's deliberate expression of her wishes as to the disposal of property on her death. Such disposition is the central purpose of a will. In my view, the October 15 Document merely contains an expression of Ms. Young's non-binding wishes related to some of her earlier dispositions. Standing alone or read with the Will and the June 17 Document, it does not constitute a disposition.

[43] The October 15 Document also differs from the Will and the June 17 Document in other respects of relevance. For example, unlike the Will and the June 17 Document, it is unsigned and no explanation for this difference has been presented. In addition, the October 15 Document is headed more in the style of a letter than a testamentary document. Further, Ms. Young did not provide a copy to Ms. Sunderland or even mention to her its existence.

[44] Given the foregoing, I find the October 15 Document does not have testamentary status. That being so, it is not susceptible to the remedial reach of s. 58 of the WESA.

In Hadley Estate (Re), 2017 BCCA 311 (CanLII), Dickson J.A. adopted the framework laid out in Estate of Young and laid out the evidence that the court may consider on a section 58 application:

[36] As discussed in Estate of Young, s. 58 is very similar to Manitoba’s curative provision and thus the leading appellate authority on its meaning is George v. Daily. George and several other Manitoba authorities are reviewed in Estate of Young, which review need not be repeated.

[...]

[40] Sitting as a court of probate, the court’s task on a s. 58 inquiry is to determine, on a balance of probabilities, whether a non-compliant document embodies the deceased’s testamentary intentions at whatever time is material. The task is inherently challenging because the person best able to speak to these intentions – the deceased – is not available to testify. In addition, by their nature, the sorts of documents being assessed will likely not have been created with legal assistance. Given this context and subject to the ordinary rules of evidence, the court will benefit from learning as much as possible about all that could illuminate the deceased’s state of mind, understanding and intention regarding the document. Accordingly, extrinsic evidence of testamentary intent is admissible on the inquiry: Langseth Estate v. Gardiner (1990), 1990 CanLII 7935 (MB CA), 75 D.L.R. (4th) 25 at 33 (Man. C.A.); Yaremkewich Estate (Re) at para. 32; George. As is apparent from the case authorities, this may well include extrinsic evidence of events that occurred before, when and after the document was created: see, for example, Bennett; George; Estate of Young; Re MacLennan Estate (1986), 22 E.T.R. 22 at 33 (Ont. Surr. Ct.); Caule v. Brophy (1993), 50 E.T.R. 122 at paras. 37–44 (Nfld. S.C.).

In Lane Estate, 2015 BCSC 2162 (CanLII), the deceased had a Last WIll and Testament dated July 1994. The deceased left seven handwritten notes between April 14, 2012 and January 9, 2015. The executor sought a determination, pursuant to s. 58 of the Wills, Estates and Succession Act, whether the notes represented the intention of the deceased to alter her Last Will and Testament. The notes appeared to be in the deceased's handwriting. Pearlman J. found that the notes did not represent the deliberate and final expression of the deceased's testamentary intentions for the following reasons:

[48] After weighing all of these factors, I find on the balance of probabilities that the notes, whether considered individually or collectively, do not represent a deliberate and final expression of the deceased's testamentary intentions. In making that determination, 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.

[49] Accordingly, I find that the notes do not have testamentary status and may not be "cured" under s. 58 of WESA.

In Henderson v Myler, 2021 BCSC 1649 (CanLII), the deceased left a will dated January 25, 2013 (the “2013 Will”). Under the terms of the 2013 Will, the BC Society for the Prevention of Cruelty to Animals (“SPCA”) was to receive the remainder of the residue of the deceased's estate, after payment of certain specific gifts to certain members of the deceased’s extended family. The gifts to family members, and to the BC SPCA, were all contained in provisions in the 2013 Will titled “Rest and Residue”. The 2013 Will was located in the deceased home in a lockbox. The 2013 Will was accompanied by a handwritten note written on a page from a yellow notepad (the “Note”). The Note purported to increase the specific amounts payable to certain of the family members named in the 2013 Will; delete gifts to other family members; add a specific gift to John Basich, one of Ms. Murray’s friends; and change the gift to the BC SPCA from the remainder of the residue, estimated to be $1.4 million, to $100,000. The specific gifts reflected in the Note did not exhaust Ms. Murray’s estate. As a result, if the Note is a valid testamentary instrument, the balance of Ms. Murray’s estate passes on an intestacy to the four plaintiffs. MacDonald J. set out the legal principles applicable in applying s. 58 of the Wills, Estates and Succession Act as follows:

[231] Section 58 is a curative provision, conferring broad discretion on the court to relieve against the consequences of non-compliance with strict testamentary formalities otherwise required by WESA in order to find that a record, document or writing, or a marking on a will or document, represents the testamentary intentions of the deceased. In Hadley Estate (Re), 2017 BCCA 311 at para. 34, the Court of Appeal describes s. 58 as “remedial in nature”.

[232] The focus is on whether the document represents the testamentary intentions of the deceased.

[233] In Hadley, the Court of Appeal said that s. 58 is similar to a curative provision in Manitoba. It cited and relied on the leading appellate authority from Manitoba, George v. Daily (1997), 1997 CanLII 17825 (MB CA), 143 D.L.R. (4th) 273 (Man. C.A.).

[234] In George at para. 35, the court confirmed that testamentary intention meant more than an expression of how a person would like their property to be disposed of after death and the key question is whether it records a “deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death” at the material time. Such a finding is intensely context and fact specific.

[235] BC cases, and cases from other jurisdictions with similar curative provisions (Manitoba, New Zealand, and Australia), show the context and fact-specific nature of the analysis.

[236] In George, the court set out the following principles:

1. The standard of proof on an application under the curative provision is proof on a balance of probabilities (para. 20).

2. The greater the departure from the requirements of formal validity, the harder it may be for a court to be satisfied that the document represents the deceased’s testamentary intention (para. 19).

3. The requirements for formal validity of a will serve several functions, including:

i. an evidentiary function by providing the court with reliable and permanent evidence of testamentary intention and the terms of the will; and

ii. a cautionary function by impressing upon the testator the solemnity, finality, and importance of his actions in making his “last will and testament (at paras. 21–26).

4. The evidentiary and cautionary functions are particularly relevant to the determination of whether or not a writing or document embodies the testamentary intentions

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