Friend of Deceased Hoped To Use WESA To Cure New Will - Court Dismisses Claim

(Re) Massam Estate, 2015 B.C.J. No. 1607

Mr. Massam died September 21, 2011 aged 85 and left behind neither a surviving spouse nor children.  Mr. Massam had executed a will in 1974 (“1974 Will”) while he was with his former spouse, Margaret.  The 1974 will provided that he left the residue of his estate to Margaret, with a gift to her son Terrance.  While the couple later separated, there did not seem to be any record showing that the couple actually divorced.  Sadly, Margaret pre-deceased him in 1993. 

There were a number of things at issue in this case.  The Public Guardian and Trustee of B.C., as official administrator for the Province, was asserting that the 1974 will is the subsisting last will and testament of Mr. Massam.  The defendants, Josh Thurston and his mother Robyn Thurston, were friends of the deceased, and Josh was asserting that an unsigned document dated September 20, 2011 (“unsigned will”), should be held as the last will and testament.  Mr. Thurston would benefit from the unsigned will as it appointed him executor and provided a specific bequest to him of $10,000.

Mr. Thurston represented himself throughout the proceedings.  While Mr. Massam’s estate was quite modest (~$62,000), Mr. Thurston’s response was served as a counterclaim, claiming that the unsigned will was a valid testamentary disposition.  Mr. Thurston’s position was that the 1974 will was revoked by Mr. Massam because he provided instructions for the unsigned will shortly before his death.  Mr. Thurston sought to employ the new curative provisions of WESA so that the court may find that the unsigned will is a valid testamentary disposition.   He also claimed the formal execution requirements of the former Wills Act violated the Canadian Charter and Part 1 of the Constitution Act.  It should be noted that it was uncontroversial that Mr. Massam never executed the unsigned will. 

The Public Guardian and Trustee sought an order to strike Mr. Thurston’s pleadings as they disclose no reasonable claim, cancel all caveats filed by Mr. Thurston and that they be granted with letters of administration with the 1974 will annexed. 

The claim proceeded by summary trial under Rule 9-7.  The court provided background to the legal framework with the new WESA in place at paragraphs 22-27. 

HELD:  The court dismissed Mr. Thurston’s claim in its entirety. 

As the deceased had died in September of 2011, prior to the statutorily prescribed qualifying date for WESA (March 31, 2014), WESA had no application to this case and Mr. Thurston could not rely on the curative provisions of s. 58 of WESA. 

The court found the 1974 will constituted the subsisting last will and testament of the deceased.  The validity of the 1974 will was not argued so it was inappropriate to grant the order sought by the Public Guardian and Trustee dispensing with the requirement for proof in solemn form.  The court mentioned that the PG & T may apply for letters of administration with the 1974 will annexed in the usual course.  Lastly, Mr. Thurston was NOT a beneficiary of the deceased’s estate. 

The unsigned will that Mr. Thurston sought to have validated did not comply with the formal requirements of the Wills Act, the act in force at the relevant time, so the unsigned will was an invalid testamentary disposition. 

On the constitutional questions:  Mr. Thurston neither provided sufficient particulars of the points to be argued to satisfy the requirements of s. 8 of the Constitutional Question Act, or his claims had no prospect of success on any analysis inferable from the materials. 

On the Human Rights Code argument:  The judge was skeptical of the merits of his claim and whether the circumstances in which the matter of devolution of a deceased`s estate could fall within the provisions of the Human Rights code.  In any event, the judge directed the alleged discrimination to be pursued by complaint to the HR Tribunal, he who “alleges a breach of human rights legislation has no cause of action in the courts” – Miller v. Thompson Rivers University 2013 BCSC 2138. 


22     On March 31, 2014, the WESA came into force in British Columbia. Its enactment heralded significant changes in the law with respect to of wills and estate administration in this province.

23     For the most part, the WESA applies to the estates of persons who have died on or after March 31, 2014, and to the wills of such persons, even though their wills may have been made prior to March 31, 2014. The effect of the transitional provisions is that s. 58 of the WESA is only engaged if the date of death of the will-maker is after March 31, 2014. While there are narrow exceptions to the date of the will-maker's death as being the qualifying event for the application of the WESA, they do not apply to the case at hand.

24     Prior to the enactment of the WESA, long-standing principles of formalism governed the creation, alteration, and revocation of wills in British Columbia. These principles were codified in the Wills Act. The pertinent legislative provisions prescribing the requisite statutory formalities for due execution, are set out in s. 4 of the former Wills Act:



Subject to section 5, a will is not valid unless


·         (a) at its end it is signed by the testator or signed in the testator's name by some other person in the testator's presence and by the testator's direction,

·         (b) the testator makes or acknowledges the signature in the presence of 2 or more attesting witnesses present at the same time, and

·         (c) 2 or more of the attesting witnesses subscribe the will in the presence of the testator.

25     It was well-settled in British Columbia, prior to the enactment of the WESA, that it was necessary to strictly comply with the statutorily prescribed formalities for creating a will. The courts have no discretion in waiving those requirements. In Ellis v. Turner (1997), 43 B.C.L.R. (3d) 283 (C.A.), the Court of Appeal commented on these strict compliance provisions, at 285:

·         The Wills Act creates a scheme designed to insure that a document purporting to be a testamentary disposition is in fact the will of the testator. A strong indicia of authenticity is proof that the will was signed at its end in the presence of witnesses. This Court must interpret, apply and respect the law as passed by the legislature. To declare the will in this case to be valid would be to by-pass the clear provisions of the Wills Act and to create a discretion in this Court which is not found in the Act. This is something which we cannot do.

26     The formalities for execution have been incorporated into s. 37 of the WESA. However, the WESA has introduced a remedial provision in s. 58 that gives the court a broad authority to "cure" a purported will, an alteration to a will, or the revocation of a will that does not satisfy the signing and witnessing requirements prescribed by s. 37. Section 58 constitutes a key component of the modernization of the law of wills and succession in British Columbia because it empowers the court to uphold the will-maker's true intentions even where the will, a gift under the will, or a purported alteration or revocation of the will is invalid pursuant to other provisions of the WESA.

27     The application of s. 58 extends to "a record, document or writing or marking on a will or document". The pertinent provisions of the WESA provide as follows:

·         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.

·         186 (1) Subject to subsections (2) and (3) of this section and section 189, Part 4 [Wills] applies to a will, whenever executed, if the will-maker dies on or after the date on which Part 4 comes into force.

·         (2) Subsection (1) does not invalidate a will validly made before the date on which Part 4 comes into force.

·         (3) Subsection (1) does not revive a will validly revoked before the date on which Part 4 comes into force.

35     In my view, it does not assist Mr. Thurston to challenge the transitional provisions of the WESA on the basis of an alleged breach of s. 15 of the Charter. The distinction between two groups of interested persons, one with access to the new curative dispensing provisions and the other without, occurs as a function of the date of death of the testator; it has no direct or indirect connection to the personal characteristics of the interested parties themselves. As such, the distinction is not of the kind that can be recognized as discrimination against the excluded group within the meaning of s. 15 of the Charter.

36     With regard to transitional provisions, the observations of Evans J.A. in Nishri v. Canada, 2001 FCA 115, are apposite. The Federal Court of Appeal in that case dismissed an s. 15Charter challenge to the transitional provisions of the Unemployment Insurance Act that imposed a cut-off on the availability of a new and expanded scheme of parental leave benefits under the statute. Evans J. concluded as follows:

·         [42] Furthermore, this case concerns provisions that are transitional in nature. Especially in the context of complex statutory schemes, such as unemployment insurance, where the total cost of the programme is a relevant consideration in its design, Parliament should be given a degree of latitude in determining where to draw the line between benefit claims falling under the old and under the new rules, an exercise that is almost bound to seem arbitrary to those falling on the wrong side of the line.

·         [43] Thus, if Ms. Nishri's baby had been born ten weeks later, or she had delayed her application for maternity leave, she would have been eligible for parental leave. However, this is not a basis for establishing a violation of the constitutional right to equality and freedom from discrimination. For a court to engage in constitutional tinkering with complex, interlocking statutory provisions in an attempt to cure an apparent arbitrariness in the operation of a justifiable cut-off in a benefits scheme is all too likely to create unforeseen anomalies of its own, even when the adverse effects of the impugned provision are not undifferentiated in their impact.

37     The transitional provisions of the WESA are clear and unequivocal. There is no discretion in the court to impose any remedial measures with respect to the apparent arbitrariness of the statutory "cut-off" date. There were sound policy and practical reasons for the enactment of these transitional provisions

·         Balance of the Constitutional Questions

38     As I have noted above, Mr. Thurston is a person who might benefit under the Unsigned Will if its formal invalidity could be overcome by curing its defects. In addition to the claim in respect of s. 15, articulated above, Mr. Thurston claims that the Wills Act unjustifiably violates his rights and freedoms under ss. 2, 7, 8, 12 and 26 of the Charter. He seeks remedies of striking down or reading in s. 52 of the Charter, as well as other remedies of an unspecified nature under s. 24 of the Charter.

39     The Attorney General submits that Mr. Thurston's claim for constitutional remedies should be struck, either on the basis that he failed to provide sufficient particulars of the points to be argued to satisfy the requirements of s. 8 of the Constitutional Question Act, or because the claims have no prospect of success on any analysis inferable from the materials. I agree on both fronts.

40     Mr. Thurston has not advanced any principled legal basis on which he may be entitled to a remedy under the Charter.

41     To the extent Mr. Thurston advances a claim for the breach of the Deceased's Charter rights, I am not persuaded that he has the standing to do so: Stinson Estate v. British Columbia, 70 B.C.L.R. (3d) 233 (C.A.) at 237-238. Mr. Thurston has not articulated a reasoned and cogent basis for a reconsideration of the governing authorities on the point.

·    Human Rights Code

42     Mr. Thurston also alleges that the Wills Act discriminates against him, contrary to the Human Rights Code, R.S.B.C. 1996, c. 210 (the "Code").

43     The Code is a provincial statute that prohibits discrimination in a number of areas of activity in both the public and private sectors, including tenancy, employment, and the provision of accommodation, goods, and services. To establish a violation of the Code, it is necessary to identify an activity or behaviour that falls within the scope of its provisions prohibiting discrimination. It is difficult to conceive of a circumstance in which the matter of the devolution of the Deceased's estate could fall within these provisions.

44     In any event, any remedy Mr. Thurston might seek in respect of alleged discrimination contrary to the Code is one that he must pursue by complaint to the Human Rights Tribunal. It is well-settled that a plaintiff who "alleges a breach of human rights legislation has no cause of action in the courts": Miller v. Thompson Rivers University, 2013 BCSC 2138 at para. 34.