WESA Curative Provisions To The Rescue! Court Cures Will With New Powers

(Re) Smith Estate, 2016 BCSC 350

The deceased passed away on January 5, 2015 with her spouse, Jack Mulliner, passing away several hours earlier.  Jack did not have any children, but lived with the deceased in a common law relationship for approximately 35 years until they married in 2012. 

As a child, the applicant, Justine Jenkins (granddaughter), was very close to the deceased and lived with her for a period of time.  As an adult, she remained close and involved with her grandmother and often spoke to her several times a day. 

The deceased had advised that she drafted three documents and signed them.  She then asked the applicant if she would be executrix of her will.  The applicant agreed.  The deceased informed her that she had prepared a funeral box that contained her will, all the relevant documents and the information needed to perform her duties. 

Upon the death of her grandmother, the applicant searched for any testamentary documents in all places she thought they might reasonably be found, including the funeral box.  The applicant found clipped and stapled together a copy of a 2008 document, an original 2011 document, and an original “funeral arrangements” document. 

The applicant brought the application for determinations that two handwritten records represented testamentary intentions of the deceased and were fully effective as though they had been made as or part of her will.  She also sought orders and declarations setting out results of these determinations as well as orders dispensing with service of notice of application on particular beneficiaries and her special costs. 

The Application was granted. 

The judge discussed WESA coming into force and the curative provision of s. 58.  Young Estate, RE, 2015 BCSC 182 (B.C.S.C.) was the first to consider s. 58. 

The judge found the documents were authentic and represented deliberate and final expressions of deceased’s testamentary intentions.  The documents were signed and expressed in language conveying air of finality.  The judge set out relevant factors (see below) in determining whether each of the documents records a deliberate or fixed and final expression of the deceased’s intention regarding disposal of her property on death.

The applicant properly raised the issue about the validity of a gift to her set out in the 2011 document suggesting it could be construed as creating an un-enforceable gift-over.  The judge also agreed with the applicant’s submission that it is not the role of the court on an application pursuant to s. 58 to determine the validity of the instrument per se including the validity of the gifts it sets out. 

Law

[17]        Turning to the applicable law, WESA came into force on March 31, 2014. Among other things, section 58 permits the court to allow a document to be fully effective as though it had been made as a will, where the court determines the document represents a deceased's testamentary intentions. BeforeWESA, documents that failed to strictly comply with the formal requirements of the Wills Act, R.S.B.C. 1996, c. 489 regarding the making, signing, and witnessing of a will were invalid.

[18]        Section 58 was first considered in Estate of Young, 2015 BCSC 182 (CanLII). Madam Justice Dickson observed the provision is curative, providing the court with a discretion in prescribed circumstances to relieve against the consequences of non-compliance with testamentary formalities. It cannot however be used to uphold a will that is invalid for substantial reasons such as testamentary incapacity or undue influence. Her decision relied upon the principles set out in George v. Daily (1997), 143 D.L.R. (4th) 273 (Man. C.A.) which dealt with similar provisions in the Manitoba Wills Act .

[19]        At paragraph 35, Dickson J. described the approach to an application under s. 58 of WESA as follows:

… (t) he 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.

[20]        She concluded the factors relevant to determining whether a document embodies the deceased's testamentary intention are context-specific and 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.

Discussion and Analysis

[21]        During the hearing the applicant quite properly raised an issue about the validity of the gift to her set out in the 2011 document suggesting it may be construed as creating an unenforceable gift-over. I agree entirely with her further submission, however, that it is not the role of the court on an application pursuant to s. 58 to determine the validity of the instrument per se including the validity of the gifts it sets out. To the extent this approach may have been taken in Beck Estate (Re), 2015 BCSC 676 (CanLII), I decline, respectfully, to follow that decision.

[22]        Turning to the application of s. 58 to the facts of this case, the applicant recognizes the handwriting in the documents as that of the deceased. In any event, it is clear to me the handwriting matches known samples of her handwriting. Accordingly, I find the documents are authentic.

[23]        In this case, the factors relevant to determining whether each of the documents records a deliberate or fixed and final expression of the deceased's intention regarding disposal of her property on death include:

•         The presence of her signature indicating her approval of the content of each document.

•         The titles she gave to each of the documents.

•         The content of the documents:

The first sets out and distributes a long list of clearly identified personal items to many specific beneficiaries on the event of her death and,

The second, includes a specific distribution of her real property, again, on the event of her death.

•         Both documents are expressed in language that conveys an air of finality.

•         The deceased met with Mr. Smith to discuss her will and presented him with both of these documents along with a third regarding funeral arrangements. She advised him she had drafted them herself and signed the first two. Her husband was also present for that meeting.

•         She subsequently met with the applicant and expressly asked her if she would agree to be her executor which she did. She advised the applicant that all of the necessary documents would be found in a funeral box she had prepared.

•         After the death of the deceased, the applicant then found a copy of the 2008 document, the original 2011 document and the funeral arrangements document in that funeral box. No other documents setting out a testamentary intention were ever located despite a diligent search.

[24]        After weighing all of these factors, I find on the balance of probabilities that the 2008 and 2011 documents represent the deliberate and final expressions of the deceased's testamentary intentions. I therefore grant the orders sought by the applicant.

[25]        Pursuant to Rule 25-14(8)(i), I grant a further order dispensing with the requirement to serve the beneficiaries of the gifts set out in the 2008 document with notice of the application. I am satisfied that most of these gifts have already been distributed. As described in the document, they appear to involve personal items with little monetary value, and the beneficiaries would not have an entitlement upon an intestacy.

[26]        The applicant shall have special costs.