Help With Your Will - Court Applies New WESA s. 58 Curative Provisions

(Re) Young Estate, 2015 BCSC 182

The case is an example of the court applying the new s. 58 curative provisions from the Wills, Estates and Succession Act (WESA). 

The executors of the deceased applied for direction on whether two documents represented the deceased’s testamentary intentions and formed part of the will.  The testatrix had died leaving a will from 2009 which included a clause requiring the executor to distribute personal articles as detailed in a memo.  The testatrix did not leave a signed memo with the will and the executor was not able to find one that matched the description in the will.  The executor did find two documents in her home – one document signed and dated June 2013 and a second which was unsigned and dated October 2013.    

The June 2013 document had two pages.  The first page provided:

“Distribution of furniture, art, antiques, jewelry, sculptures, First Nation masks etc.  This is being prepared if I have not sold, given in advance of death.”

Beyond this, she described six people as beneficiaries and under each name she listed several items of personal property.  The final words of the document:

“If items not taken buy any of the beneficiaries provide to sell – Maynards Auction, Consignment shops in West Vancouvers including antiques and designer clothes, mink coat.  Maynards would be good resource for items they do not sell for auction.  There are items not named that could be the choice of named beneficiaries.”

Importantly, Ms. Young also signed the first page of the document. 

The second page of the June document details the beneficiary contact information. 

On June 17, 2013, she invited her friend and next-door neighbour out to lunch.  During their meal, she handed her neighbour an unsigned version of the June document and asked her to help ensure that the beneficiaries received what they wanted.  Her neighbour obliged.

The October document was different than the June document -

The October document was a single page with her address and the date at the top with the following:

“TO WHOM THIS MAY CONCERN:

This will serve to confirm, I have requested Nancy Sutherland of 1920 Riverside Dr., North Vancouver, BC to distribute to named beneficiaries household effects including art, all antiques, all furniture.  Specific items have been identified for specific beneficiaries.  As well, beneficiaries may also choose other items not named for them for the rest. 

Because Child A and Child B are the youngest, they may have first choice of unnamed items.  Jefferey Young and then the others based upon age for fairness.  Items not taken by all beneficiaries are to be consigned, sold or auctioned on behalf of the estate.” 

Importantly, Ms. Young did not sign the October document and did not mention the existence of this document to Ms. Sutherland.

HELD:  The court allowed the application made by the executor and found that the June 2013 document recorded the testatrix’s deliberate expression of her testamentary wishes.  The fact that she signed the document signalled her knowledge and approval.  In signing the June 2013 document, she represented her testamentary intentions and the document was fully effective as though as it had been made part of her will. 

As for the October 2013 document, the document was found to merely be an expression of the testatrix’s non-binding wishes.  The document did not form part of the will and did not constitute binding disposition. 

The court also reviewed the Manitoba authorities and took their lead in the matter.

Section 58 of the WESA

[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.

[18]        Section 58 provides, in relevant part:

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.

[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").

[22]        Section 23 of the WA provides:

Dispensation power

23        Where, upon application, if the court is satisfied that a document or any writing on a document embodies

(a)        the testamentary intentions of a deceased; or

(b)        the intention of a deceased to revoke, alter or revive a will of the deceased or the testamentary intentions of the deceased embodied in a document other than a will;

the court may, notwithstanding that the document or writing was not executed in compliance with any or all of the formal requirements imposed by this Act, order that the document or writing, as the case may be, be fully effective as though it had been executed in compliance with all the formal requirements imposed by this Act as the will of the deceased or as the revocation, alteration or revival of the will of the deceased or of the testamentary intention embodied in that other document, as the case may be.

[23]        Given the similarity between Manitoba and British Columbia's curative provisions and the dearth of case authority interpreting s. 58 of the WESA, it is helpful to consider Manitoba authorities on this application.  It should be noted, however, that s. 23 of the WA in its current form was enacted in 1995 to clarify that it conferred a broad judicial dispensation power not contingent on partial compliance with the formalities.  Accordingly, those Manitoba authorities decided prior to 1995 are of limited assistance because they interpreted an earlier version of s. 23 which created a substantial compliance regime.

Summary

[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.

DISCUSSION

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 ofs. 58 of the WESA.