Court Uses New Powers to Fix Will - How the New Act Helps You

 Yaremkewich Estate (Re), 2015 BCSC 1124

Denise Lynn Bevan Yaremkewich passed away July 7, 2014 leaving behind documents that did not comply with the formal requirements of WESA .  In 2014, before her death, she seemed to have worked with a pre-printed will template form which purported to revoke all of her former wills, codicils, and testamentary dispositions dealing with her estate of ~$545,000 although there did not appear to be any previous will or document.  The document appointed two people as executors of her will, her niece (the applicant), and her close friend (who later formally renounced the appointment). 

The court went into great detail in analyzing the documents, their supposed origin, and the sequence of events that lead to the final copy.  The pre-printed document was quite curious:  Ms. Yaremkewich had filled in the necessary spaces by hand and it contained appointment of executors, set out burial arrangements, directed expenses and taxes, and provided gifts, money bequests, and the division of proceeds of the house.  The document also referred to 3 other documents which were found in an envelope with the above document.  The document directed the reader to “see attached instructions” and “see attached for other bequests”.  The envelope had been labelled indicating that it contained the last will of Ms. Yaremkewich.  

Notably, the document had been signed by two witnesses.  These witnesses gave evidence that they had visited Ms. Yaremkewich and signed the document when she asked them to.  They could not recall if Ms. Yaremkewich had signed the document before they did and they mentioned that it was a blank template with no attached pages setting out bequests.  During their visit, they recalled that Ms. Yaremkewich had told them there were charities that she was considering donating to and that she had not yet made a list of bequests.  They also remember that she had asked them which of her personal items they would like. 

Later in 2014, Ms. Leblanc (the close friend and executor that renounced) deposed that she was given a copy of the will itself, but did not receive the 3 handwritten documents attached to the will.  She was also not involved with the preparation of the will and did not have any knowledge of the additional documents.  

HELD

The court employed the new curative provision found in s. 58 of WESA, which gives the power to allow a document/will, which does not comply with the Act, to be fully effective as though it had been made as the will of the deceased person.  Looking at the entirety of the evidence, the court was satisfied that the document and its attachments represented the testamentary intentions of Ms. Yaremkewich.  With this decision, we have more insight into the applicability of the new WESA provisions – this adds to (Re) Young Estate, 2015 BCSC 182, which I previously wrote on this year.  The courts in BC continue to follow 

The court found it impossible to determine exactly when the pre-printed document (the will) was executed.  The document was dated the same day that the witnesses had visited Ms. Yaremkewich and signed the incomplete form, however, they recalled that the document was blank and that she had not made a list of bequests.  The court found that, given the length of the document and the detail required in the bequests, it is unlikely that Ms. Yaremkewich finished preparing the document the same day the witnesses signed.  Nevertheless, the court found that since the document referred to the “attached” documents, it is clear they were to function together and it is likely that Ms. Yaremkewich completed all the documents at the same time shortly after the witnesses had signed.  It was relevant that the “will” and the attached documents were all found in a labelled envelope purporting to be the will.  Ms. Yaremkewich had also given a copy of the will to her close friend (the executor who later renounced), although without the attached handwritten documents. 

THE LEGAL FRAMEWORK

The Formal Requirements for a Valid Will

[25]        The formal requirements for a will are set out in s. 37 of WESA:

37(1)   To be valid, a will must be

(a)  in writing,

(b)  signed at its end by the will-maker, or the signature at the end must be acknowledged by the will-maker as his or hers, in the presence of 2 or more witnesses present at the same time, and

(c)  signed by 2 or more of the witnesses in the presence of the will-maker.

(2)  A will that does not comply with subsection (1) is invalid unless

(a)  the court orders it to be effective as a will under section 58 [court order curing deficiencies],

(b)  it is a will recognized as valid under section 80 [validity of wills made in accordance with other laws], or

(c)  it is valid under another provision of this Act.

[26]        On the evidence, I am satisfied that the Will does not comply with the formalities of WESA.  The effect of sections 37(1)(b) and (c) is that Ms. Yaremkewich had to sign or acknowledge her signature in the presence at least two witnesses who were present at the same time and signed in the presence of the will-maker.  In the circumstances, it is clear that the will form was not validly witnessed as required by WESA.

[27]        These requirements are strict, and the court does not have the discretion to waive the witnessing requirements: Bolton v. Tartaglia, 2000 BCSC 576(CanLII) at paras. 18–19, citing Ellis v. Turner (1997), 1997 CanLII 3972 (BC CA), 43 B.C.L.R. (3d) 283 (C.A.). 

[28]        Mr. and Mrs. Bespalko, the witnesses to the Will, provided uncontradicted evidence that when they signed the Will, it was still a blank template document and had not been signed by Mrs. Yaremkewich.  Accordingly, I find that the contents of the executed will were added after the will template was signed by the witnesses.  Although it is not clear whether Ms. Yaremkewich signed the form at that time, even if she had, she would not be signing at the end of the will since the will template was blank at that time.  Therefore, Ms. Yaremkewich’s will was not validly witnessed in accordance with WESA,ss. 37(1)(b) and (c).   

[29]        WESA, which came into effect on March 31, 2014, contains a new provision in s. 58 that even if a document fails to comply with the formalities of the statute, a court may nonetheless order that the document is fully effective as if it had complied with the statute.  The provision reads 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.

[30]        Accordingly, s. 58(3)(a) empowers the court to order that a document or other record is fully effective as the will of a deceased person if the court is satisfied that the document represents the testamentary intentions of that deceased person. 

[35]        In several other provinces, the legislation that governs wills has a similar curative provision that allows the court to remedy formal defects if it is satisfied that the document represents that deceased’s testamentary intent.  The leading case on Manitoba’s curative provision is George v. Daily (1997),143 D.L.R. (4th) 273 (Man. C.A.).  In that case, the deceased advised his accountant that he wanted to change his existing will.  The accountant made notes and wrote to the deceased’s lawyer detailing the deceased’s instructions.  The deceased met with the lawyer and confirmed his instructions.  Based on the lawyer’s instructions, rather than writing a new will during that meeting, the deceased agreed to get a medical certificate proving his competency before he executed a new will.  The testator died soon afterwards without having gotten the medical certificate or executed a new will. 

[36]        Ultimately, the Manitoba Court of Appeal in George held that the letter to the lawyer did not represent a fixed and final expression of his intention as to the disposal of his property upon his death (at 291, 294–295).  There was no evidence that the deceased had seen the letter or affirmed its contents, and the court was not satisfied that the deceased intended for the plan to be completely fixed during the period when he was planning to get a medical certificate (at 293–294).  In the circumstances, the Court of Appeal was satisfied that the letter was, at best, instructions for preparing his will, and it did not apply the curative provision (at 294–295). 

[37]        As illustrated by the George decision, one of the central concerns when determining the deceased’s testamentary intent is the finality of her decision.  When the document only amounts to instructions to create a will, or the document is not completed, or there is some other circumstance that negates the finality of the document, then that document does not represent its creator’s testamentary intent.  See for example Sawatzky v. Sawatzky Estate,2009 MBQB 222 (CanLII), in which Simonsen J. held that an unsigned, typewritten document drafted by the deceased’s lawyer should not be treated as a valid will since there was evidence indicating that it was not intended to be the final draft of the will.  The deceased in that case was a meticulous individual who did not likely believe that death was imminent.  Given the large number of instructions previously given to his attorney and the large number of bequests in his previous holograph will, the court inferred there was a possibility that he had chosen not to sign the document immediately and give it more thought (at para. 31). 

[38]        However, because wills can be revoked in the will-maker’s lifetime, it is important to note that this analysis looks at whether the deceased had a deliberate or fixed intent at the time they created the document, not for evidence of an irrevocable intention.  This was summarized in Young at para. 35:

…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.

[39]        I find Ms. Yaremkewich’s Will to be similar to the wills at issue in Kuszak v. Smoley (1986), 46 Man. R. (2d) 14 (Q.B.) and McNeil v. Snidor Estate,2008 MBQB 187 (CanLII).  In both of these cases, the court applied the curative provision in Manitoba’s will legislation to treat standard-form will templates as valid wills even though the documents were not properly witnessed. 

[40]        In Kuszak, the deceased printed a blank will template and completed it entirely in his own handwriting, but did not obtain any witness signatures.  Nonetheless, Glowacki J. found that the document represented the deceased’s testamentary intentions and ordered that the document was fully effective as a will.  Glowacki. J. summarized the relevant circumstances that influenced his decision as follows:

6        In the present case, the testamentary document was signed by the deceased and therefore there has been some compliance.  The lack of witnesses, although very important, does not prevent the court from admitting a testamentary document to probate if the court is satisfied that it embodies the testamentary intentions of the deceased.

7        The printed form was completed entirely by the deceased in his own handwriting and bears his signature in four places.  The printed form identifies the document as a "will" and was completed properly by the deceased.  The deceased was careful to deal with all of his estate and to appoint an executor.  The date is inserted in four places.  There is nothing before the court that suggests that the document does not embody the intent of the testator.

8        It is of concern to the court that the document in question does not bear the signature of any witnesses as this is one of the safeguards to ensure that the document is really the last will and testament of a testator.  If the printed form of document had been completed by some other person, or had it been a typed document with the signature of a testator without any witnesses, it may be that the court would not be satisfied that it embodied the last will and testament of a testator.  These are factors which must be considered in the circumstances of a particular case.

[41]        In McNeil, the deceased’s will was a template will on which he added handwritten comments.  The two witnesses signed separately.  One witnesses stated that the will was blank when he signed, and the other stated that she could not recall how much handwriting was on the document when she signed it and she did not read the document.  Following George and Kuszak, McCawley J. applied Manitoba’s curative provision and admitted the will to probate.  Some details which McCawley J. found to be significant were:

•                     the document revoked prior wills and expressed specific intentions of who should and should not receive the proceeds of estate;

•                     the document appointed an executor and provided him instructions for managing the estate and funeral arrangements;

•                     the document was entitled “Will” on the first page;

•                     all blank spaces in the will except for two were filled in with the deceased’s handwriting;

•                     the deceased signed the second and third pages of the will;

•                     the deceased had obtained witness signatures, although he did not comply with the proper formalities for witnessing a will;

•                     there was no evidence that the will did not indicate the deceased’s testamentary intention or that he lacked capacity to make a will; and

•                     the will demonstrated a reasonable explanation for the differences between it and the previous wills (at paras. 21–23). 

 ...

ANALYSIS

[49]        The types of evidence that are relevant to prove testamentary intent will vary from case to case.  In this case, the contents, the detailed wording of the Will and its attachments, and the circumstances in which they were found militate in favour of finding that the will and two of the accompanying documents, the bequest lists, represent Ms. Yaremkewich’s testamentary intentions meaning that they represent her fixed and final expression of intention as to the disposal of her property on death. 

[50]        Other evidence is also of assistance.  For example, her statements to the witnesses Mr. and Mrs. Bespalko indicate that she was contemplating specific bequests at the time that she arranged for witnesses to the Will.  Ms. Yaremkewich was ill at this time, and I infer from her actions that she wanted to put her affairs in order.  She used a will template rather than an ordinary piece of paper.  The four documents were treated as important by being placed in an envelope and marked as her will.

[51]        It is relevant that Ms. Yaremkewich attempted to comply with the formalities of making a will, including signing and dating the Will at the end and initialling many of the pages.  Attempts were made to comply with the formalities of execution by having two witnesses sign.  Executors were appointed.  Finally, many of the provisions are detailed and indicate a great deal of thought, such as the appointment of a lawyer as an alternate executor, the making of alternative gifts if certain beneficiaries predeceased her, and bequests to minors not being made until they reach the age of 21.

[52]        Further, it is worth noting that there are no changes or markings in Ms. Yaremkewich’s Will or the accompanying documents that indicate that they were only draft documents or were not meant to be fully effective.  I am also satisfied that the documents are authentic, and that they were written by Ms. Yaremkewich. 

[53]        Finally, there is no evidence to the contrary or suspicious circumstances that indicate the Will does not represent Ms. Yaremkewich’s testamentary intent. 

[54]        In the circumstances, I find that the Will represents Ms. Yaremkewich’s testamentary intentions.

[55]        Concerning the other documents in the envelope, the circumstances surrounding the creation of the Will are a key factor in determining Ms. Yaremkewich's intentions.  Although it is not possible to determine exactly when all of the documents were completed, it is likely that they were created at approximately the same time and I so find.  The will form that Ms. Yaremkewich filled in was only three pages long, and she filled in nearly all the blank space provided for gifts under heading number four of the template.  To be able to include detailed gifts and instructions, it was necessary for her to include additional pages.  Accordingly, in provisions three and six of the Will Ms. Yaremkewich referred to attachments and then placed the documents together in an envelope which was marked “Will of Denise Lynn Bevan Yaremkewich”.  Given the amount of detail and consistency in the additional 18 pages, I am satisfied that the additional three documents were created at approximately the same time as the main body of the Will, and that she intended for these to operate alongside the Will. 

[56]        Based on the foregoing, including the factors I have referred to that support the finding that the Will represents Ms. Yaremkewich’s testamentary intention, as required by s. 58(2)(a) of WESA and as explained in George, I find that I find that the two bequest lists enclosed in the envelope also represent the testamentary intentions of the deceased and are therefore part of the Will.  Each of the documents in substance contemplates gifts on her death and in that sense is testamentary in nature. 

[57]        The personal bequest list is 12 pages long and entirely in Ms. Yaremkewich’s handwriting.  It sets out a large amount of her personal property using detailed descriptions, and grants highly personalized gifts to 19 beneficiaries, including friends, family, and extended relationships.  Many of the gifts are small personal items.  It is obvious that Ms. Yaremkewich spent a great deal of time considering which gifts to give to each beneficiary.  I have no doubt that this represents her carefully-considered testamentary intentions. 

[58]        For similar reasons, I find that the charitable bequest list also represents Ms. Yaremkewich’s testamentary intent.  This document distributes the remainder of the estate to 12 named charities with various charitable goals, but the charities seem to predominantly deal with animal welfare and medical services.  Since Ms. Yaremkewich’s testamentary documents are detailed and there is no other provision outlining the remainder of the estate, and in the absence of any evidence to the contrary, I find that this represents her intention to dispose of the remainder of her estate after the other gifts are made.

[59]        The only exception is the document by which Ms. Yaremkewich left instructions for the care of her beloved dog Jake.  It does not contain funeral instructions for her or a disposition of her property on death.  The bequest for Jake’s care is made in the Will which I have found to be valid.  Although the care instructions indicate Ms. Yaremkewich’s wishes for Jake’s care after her death, which is an admirable concern, they are not testamentary intentions.  As such, that document does not have testamentary status and is not within the curative power of s. 58.  

[60]        After considering all of the evidence, I am satisfied that the Will and the two accompanying bequest lists collectively represent Ms. Yaremkewich’s testamentary intentions.  They represent her fixed and final expression of intention as to the disposal of her property on death. 

[61]        I am therefore satisfied that the Will and the two bequest lists which were placed in the envelope should be treated collectively as a fully effective will pursuant to s. 58

CONCLUSION

[62]        For the reasons set out above, the application is granted.  I order that the Will, the personal bequest list, and the charitable bequest list included in the envelope are fully effective as Ms. Yaremkewich’s will pursuant to s. 58 of WESA

[63]        Accordingly, I order that a Grant of Probate of the Will and two foregoing documents be issued to Ms. Beirness as executor.