Save Your Final Wishes - Court Applies Curative Provision to Rescue Dying Wish

Re Riguidel Estate, 2017 BCSC 1667

The petitioner, Debi, sought a determination pursuant to s. 58 of WESA whether the signed document of her deceased father, Larry, dated February 7, 2016, represented his intentions to replace his Will dated August 11, 2015.  The petition was not opposed. 

In 2011, the petitioner began assisting her mother and father around their house and her presence (along with her partner) became common place as she contributed 5 hours each day to household duties.  Debi ultimately quit her job as she could not hold down a job while looking after her mother.  Debi continued to assist her mother to the point that she and her partner paid most of the bills for her parents.  Sadly, Larry became ill in December 2015 and was diagnosed with lung cancer late January 2016.  Larry later died February 28, 2016.  Upon his death, a typewritten and handwritten document came into question as they seemed to change bequests found in his will dated August 2015. 

The documents in question arose in the period not long before Larry’s death.  On February 10, 2016, while in hospital, Larry presented Mr. Vince Kapinus, Debi’s partner, with a handwritten document.  Larry then asked Mr. Kapinus to type out the handwritten document, which he agreed to and provided the typewritten document the following day.  In the presence of Ms. Leonard, a friend, and Mr. Kapinus, Larry signed both the handwritten and typed documents. 

The court delved into how the documents came into existence and found Ms. Leonard had a number of conversations with Larry before he died (regarding his will and property) and encouraged him to get his affairs in order and put any changes in writing. 

Importantly, compelling evidence came from one of Larry’s other daughters, Donna:

·         She mentioned that in the weeks before Larry’s death, she had a conversation with him advising her that it was important that Debi was to receive the house that he owned after he died, as she had done so much for him. 

·         That Debi and her husband, Vince, lived with the parents for many years and contributed greatly to the construction and upkeep of the house.

·         After their mother died, the father had realized he did not have enough money to pay the mortgage.  Donna had been present during a conversation between Debi, Vince, and her father in which Debi and Vince offered to pay the mortgae and bills and ensure that their father would be taken care of financially. 

·         Donna described the relationship of Debi and Vince to their father as a “trusting and loyal friendship”

·         Donna believed her father intended to provide Debi and Vince with his home in part because both she and her sister, Kim, had houses of their own and they did not live with their parents as adults. 

·         Donna was confident that the February 11, 2016 “codicil” prepared by the deceased was a true and accurate reflection of his wishes. 

The court found that Larry had recognized a moral, if not a legal obligation, to his daughter, Debi, and son-in-law for their contribution to the estate. 

The court found the typewritten document of February 7, 2016 represented the testamentary intentions of Larry sufficient to alter his will as to the disposition of the assets of his estate was effective as part of his will. 

This is yet another case which highlights the use of the s. 58 curative provisions of WESA to assist the court in determining an individual’s wishes after death. 

THE LAW

[34]        In Young Estate (Re), 2015 BCSC 182 (CanLII), Madam Justice Dickson, as she then was, described some of the factors that should be present when seeking a non-compliant document to represent the deceased’s person’s intention under the curative provisions of s. 58(3) of WESA. In determining the deceased’s final testamentary intentions, Madam Justice Dickson wrote:

[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.

[35]        The curative provisions of s. 58(3) of the WESA are fact sensitive.

[36]        Extrinsic evidence is permitted in order to determine whether the non-compliant document is the deceased’s final expression, as to his or her testamentary intentions pursuant to s. 58(3) of WESA: Litke Estate (Re), 2017 BCSC 1079 (CanLII) at para. 39.

[37]        It comes down to this – whether the document presented was prepared by the deceased and that its contents represent a “deliberate or fixed and final testamentary intention at the material time for the disposition of the estate: Litke Estate (Re) at para. 42.

DISCUSSION

[38]        I am satisfied, on the evidence, that the documents dated February 7, 2016, copies of which are in Appendix 1 to these reasons, are the deliberate expressions of the deceased’s wishes as to the disposition of his property upon his death.

[39]        I also find that the handwritten document signed by the deceased and the witnesses, Ms. Leonard and Mr. Kapinus, in the deceased’s presence was to record and confirm that the typewritten document set out the terms of the handwritten document, which reflected the deceased’s intentions before the deceased signed the typewritten document.

[40]        It is clear from all of the evidence that the deceased recognized a moral, if not a legal obligation, to his daughter and son-in-law for their contributions to his estate.

[41]        I determine that the typewritten document dated February 7, 2016 represents and embodies the deceased’s testamentary intentions sufficient to alter his Will as to the disposition of the assets of his estate and is effective as part of the Will.

[42]        I am also aware that this may leave the residue of the deceased’s estate unadministered or disposed. The petitioner, in its proposed Order, but not in its Petition, seeks the typewritten document of the deceased be treated as a codicil. I will not as this was not sought in the Petition, nor argued by the petitioner.

[43]        The petitioner in her Petition seeks:

b.         an order and declarations setting out the results of and giving effect to the court’s determination under paragraph 1(a), above;

[44]        I have assumed that the petitioner wishes me to interpret the typed document of February 7, 2016 in conjunction with the Will. No argument or case law was placed before me. I note there is uncertainty between the petitioner and her sister, Ms. Malley, as to the appointment of the executor and trustee in the Will. I decline to do this.