What To Do When Grandma Adds To Her Will Before Death - WESA Curative Provisions Considered

(Re) Beck Estate, 2015 BCSC 676

Celena Beck’s son, acting as the executor of his mother’s estate, applied for court orders under s. 58 of WESA.  He applied to determine whether handwritten alterations of the Will of his deceased mother, dated from 2009, and a handwritten record signed by her in 2012 represent her testamentary intentions, the intention to alter her Will, or are otherwise testamentary dispositions by her.  Additionally, he sought an order and declaration setting out the result of the court’s determination and an order that his costs as executor be paid out of the estate of his mother. 

The deceased, Celena Beck, died in May of 2014 at the age of 95.  She had 3 children with one son estranged from the family for over 30 years. 

Prior to her death, Celena gave her son and executor of her estate, Dietrich, two documents for safekeeping.  The first was a Will, executed by Celena in 2009 (the “Will”) and the second document being a two-page handwritten record (the “Handwritten Record”). 

The Will detailed that her property of two acres be divided between two of her children, Arlene and her son, Dietrich.  If the property were to be subdivided, the estate would pay the cost of the subdivision, otherwise the property would pass to the siblings as tenants in common.  The Will also provided a sum of $25,000 to go to her granddaughter, Wendy. 

Finally, the residue of the estate is to be divided equally between Arlene and Dietrich.

The Handwritten Record:

The Handwritten Record is a letter dated from 2012 and is entitled in red ink, “Codicil to my last will at above date”.  The record is signed and begins with the words:

                “Mrs. Celena P. Beck. 

Having had my lawyer ‘Mr. Mote’ [sic] make out my will and with myself in my sound mind have been forced to change a few things stated in said will.”

The record provided an account of the difficult relationship which Arlene had with the family and her brother, and her occupation on her mother's property since 1965.  Celena expressed that she wanted Arlene to be left alone on the property and wished that she live there for the rest of her life and then leave the land to her only child, Wendy.  

The case highlights one of the few instances, thus far, that the court has considered s. 58 of the Wills, Estate and Succession Act (“WESA”).  The other case was decided by Madam Justice Dickson (Young Estate (Re), 2015 BCSC 182).  In coming to her decision, MJ Dickson seeks guidance from other provinces’ legislation, notably, s.23 of the The Wills Act in Manitoba. 

As a refresher, WESA brought with it special curative provisions (Division 5) allowing the court to address technical deficiencies in Wills and to allow documents to construct the deceased’s testamentary intentions (s. 58(2)). 

Master Young provided a brief outline of the law given the legislation being in its infancy: 

[15]         Section 58 of the WESA has been considered in one British Columbia Supreme Court case, a decision of Madam Justice Dickson (Young Estate (Re), 2015 BCSC 182). In Young, Madam Justice Dickson notes the absence of any British Columbia authority in interpreting this new section and she looks to other provinces’ legislation. She notes that s. 58 of the WESA is most like the curative provisions in s. 23 of Manitoba’s Wills Act, The Wills Act, C.C.S.M. c. W150.

[16]         After reviewing Manitoba’s authorities, Madam Justice Dickson concluded that the curative power is intensely fact-sensitive. The first threshold issue is whether the document is authentic. The core issue is whether the non-compliant document represents the deceased’s testamentary intention. That concept was explained in the Manitoba Court of Appeal decision George v. Daily (1997), 143 D.L.R. (4th) 273 (Man. C.A.). In that decision, Philp J.A. explained the limits placed on the court’s curative powers. At paragraphs 62 and 65 he stated:

62        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. …

65        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: …

[17]         Justice Dickson explained that the intention must be fixed and final at the material time, which will vary depending on the circumstances, but does not have to be irrevocable intention given that a Will is revocable until the death of the testator. She concluded, at paragraphs 36 and 37:

[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 Handwritten Record:

Is the document authentic? 

The court found that the Handwritten Record was dated and signed and written by the deceased.  Although the signature of the deceased was not witnessed, the executor, her son, recognized that the handwriting and signature were that of his mother. 

Does the document pertain to final expression of testamentary intention? 

As the wording of the document contained deliberate indication as to the disposal of her property and was given to her executor for safekeeping one week before her death, this was adequate evidence for Master Young to conclude that the Handwritten Record was a final expression of her testamentary intention. 

Discussion

The Handwritten Record

[18]         The Handwritten Record is dated and signed and is written by the deceased. The executor recognizes the handwriting and signature as that of the deceased. Her signature is not witnessed. The wording, “Codicil to my last will” and the words, “To be read out by My Lawyer. Mr. Mote” [sic] suggests to me that this document contains a deliberate or fixed and final expression of intention as to the disposal of her property upon her death. Although the document does not make reference to funeral arrangements, it does make reference to the reading of the Will, which suggests a final expression.

[19]         The fact that the deceased gave this document to her executor for safekeeping one week before her death and told him that she thought the unwitnessed Codicil was a valid Codicil, reinforces my conclusion that this is a final expression of her testamentary intention.

[20]         Some of the content in the Handwritten Record is unenforceable. She speaks of her wish as to how her daughter will use the gift of property when she says:

Arlene must be left alone on the place she has worked all these years and made beautiful as a Park. I would like her to do so the rest of her life. Then leave it for her only child Wendy Reimer …

[21]         In Eberwein Estate (Re), 2012 BCSC 250, the executor sought advice and direction from the court regarding bequests in a Will which were unclear. The bequest that is relevant for this discussion was a gift of $1,000,000 to a beneficiary with direction that she invests the money to purchase a revenue-producing property. Madam Justice Griffin says:

[30]      Courts are greatly suspicious of attempts by testators to give with one hand and retain with the other. If an absolute gift is made, accompanied by uncertain language expressing a wish or request, the courts are reluctant to imply a trust: McIver Estate v. McIver, [1981] B.C.J. No. 68 (S.C.) at para 4; Sutherland Estate v. Nicoll Estate, [1944] S.C.R. 253 at 262, [1944] 3 D.L.R. 551 [sub. nom. Hayman v. Nicoll]. In the McIver case, the word “trust” was used and so the court did not consider the words to be “merely precatory or recommendatory”. However, in the present case, the word “trust” was not used in the clause at issue. Rather, I find that the words used here imposed no defined restrictions on the beneficiaries and are so loose that a trust could not have been intended by Ms. Eberwein, who was sufficiently sophisticated to have spelled out a trust clearly if that is what she intended.

[22]         Ms. Beck made an absolute gift of property to her daughter in the Will. The Handwritten Record contains uncertain language, expressing a wish as to how the property will be used. I do not find that the Handwritten Record creates a trust, but is an expression of wishes or recommendations.

[23]         The only clear gift contained in the Handwritten Record is the gift of $10,000 to “my dead Grandsons [sic], son Adam Minshall” [sic].

[24]         I find that this gift to Adam Minshull is a deliberate expression of the deceased’s wish and testamentary intention, so I will exercise the curative power under the authority of s. 58 of the WESA. I order that that portion of the Handwritten Record is fully effective, as though it had been made as part of the Will.

[25]         I have also considered the words:

Any money left in Estate should help repair my run-down property.

This will be in Ricks [sic] capable hands.

The residue clause in the Will says that the residue of the estate is to be divided between “Dietrick Reimer” [sic] and “Arlene Minshall” [sic]. I do not find that these words in the Handwritten Record constitute a deliberate expression of testamentary intention to vary the residue clause in the Will.