In British Columbia, Section 58 of the Wills, Estates and Succession Act (WESA) provides a remedy for such situations, allowing the court to rectify and validate documents that might otherwise be deemed invalid. This provision is essential for ensuring that the true intentions of the deceased are honoured, even if the will is imperfect.
This page provides some general information about administering an estate. It is not legal advice, and parts may not be relevant to your situation. If you have questions about whether a document might be a will, you should seek legal advice specific to your issues from a lawyer experienced with BC estate issues.
A will is a legal document that expresses your wishes about how you want your property and affairs to be handled after your death. A will can also name a person to act as your executor, who will be responsible for carrying out your instructions and distributing your estate. A will can also provide for the care of your minor children, pets, or dependents, and specify your funeral or burial preferences.
Making a will is an important step in planning for the future and ensuring that your loved ones are taken care of. However, not all wills are valid in the eyes of the law. If your will does not meet the legal requirements, it may be challenged or declared invalid by a court, which could result in your estate being distributed according to the default rules of intestacy, rather than your wishes.
In British Columbia, the legal requirements for a valid will are set out in the Wills, Estates and Succession Act (WESA). According to WESA, a will is valid if it meets the following criteria:
If the witness to the will is a beneficiary of the spouse of a beneficiary, it does not invalidate the will, but the gift to that beneficiary will be void unless a court declares otherwise.
A will that is made outside of British Columbia may be valid in British Columbia if it complies with the laws of the place where it was made, or the laws of the place where the will-maker was domiciled, resident, or a citizen at the time of making the will, even if it does not comply with British Columbia laws.
When drafting a will, it’s crucial to ensure it complies with the legal formalities to be considered valid. However, there are instances where a will might not meet all the necessary requirements, leading to potential challenges in its execution. In British Columbia, Section 58 of the WESA provides a remedy for such situations, allowing the court to rectify and validate documents that might otherwise be deemed invalid. This provision is essential for ensuring that the true intentions of the deceased are honored, even if the will is imperfect.
Section 58 of the WESA gives the Supreme Court of British Columbia the power to cure deficiencies in a will. This means the court can recognize a document or record as a valid will, even if it does not comply with all the formal requirements typically necessary for a will to be legally binding. The primary objective of this provision is to prevent the deceased’s genuine intentions from being thwarted due to technical errors or omissions.
The provisions of section 58 include:
(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
Given the wide range of documents that could be considered a will, the executor should thoroughly search for any documents that seem to contain instructions for the deceased person’s estate. If in doubt, the executor should seek legal advice regarding any such documents found.
An interested party, such as an executor, a beneficiary, or a potential beneficiary, may apply to the Supreme Court of British Columbia for an order under Section 58.
The applicant must provide evidence that the document in question reflects the deceased’s testamentary intentions. This evidence most commonly takes the form of written affidavits. Affidavits can be provided by any person who has relevant information, not just the applicant. However, it is the applicant’s responsibility to collect the affidavits and file them with the court. The evidence can include the circumstances surrounding the creation of the document and any other relevant information.
Other interested persons may provide response evidence that explains why they do not believe that the document in question reflects the deceased’s testamentary intentions.
A court date will be set to hear the matter. All parties who have filed materials will have an opportunity to explain to the judge why they believe that their position is correct based on the evidence they have provided. The court will review the evidence to determine if the document, though not formally executed, represents the deceased’s final wishes. Factors like the document’s language, context, and consistency with the deceased’s known intentions will be evaluated.
If the court is satisfied that the document represents the deceased’s testamentary intentions, it will issue an order recognizing the document as a valid will.
Hadley Estate (Re), 2017 BCCA 311 confirmed that section 58 is remedial in nature, conferring a broad discretion in prescribed circumstances to order a writing or marking on a will fully effective despite non-compliance with the statutory requirements for alteration. The two questions to answer regarding the document are (1) whether it is authentic, in the sense of actually being made by the deceased person; and (2) whether the document represents a deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death.
Section 58 does not require a minimum level of execution or other formality for a testamentary document to be found fully effective.
The usual time for determining a deceased person’s intentions as stated in their will is when the document was created. However, depending on the circumstances, the time period may vary. It’s possible for a document to be considered as a will if the person’s intentions are clearly expressed or documented at a later time.
Since the deceased person is unable to testify, the court may find it helpful to have information that could shed light on the deceased’s state of mind, understanding, and intention regarding the document. Extrinsic evidence of testamentary intent before, during, or after the document was created may be admissible, in accordance with the usual rules of evidence. Extrinsic evidence refers to any evidence that is not contained within the document itself but is used to clarify, explain, or provide context to the written words of the document. It is introduced to help interpret, understand, or prove the content or intent of the document.
The court in Jakonen Estate (Re), 2022 BCSC 2261 summarized factors that may be relevant in an application made under section 58 as follows:
a) Was the document or record made by the Deceased or by a third party? A document made by the Deceased is more likely to be given effect than a document made by a third party, including a lawyer’s draft: George v. Daily (1997), 1997 CanLII 17825 (MB CA), 143 D.L.R. (4th) 273 (Man. C.A.).
b) Where was the document or record found? If the Deceased left the document or record in a prominent place where it was likely to be found, or with other testamentary documents, the document or record is more likely to be given effect: Skopyk Estate, 2017 BCSC 2335 at para. 22
c) Is the document or record signed, or is there any other compliance of the formal requirements for a valid will? The greater the degree of compliance with the formal requirements, particularly if the document is signed, the greater the likelihood that the document or record will be given effect: Estate of Young, 2015 BCSC 182 at para. 39
d) Is there a title on the document or record? If a document or record is given the title “will” or “codicil” or a similar notation, it is more likely to be given effect: Smith Estate (Re), 2016 BCSC 350 at para. 23.
e) Is the language of the document or record dispositive, and does it have an air of finality? If so, it is more likely to be given effect: Smith Estate at para. 23.
f) Does the document or record provide for a rational distribution? If so, it is more likely to be given effect: Skopyk Estate at para. 27
g) Is the document or record consistent with other evidence of the Deceased’s intentions? If so, it is more likely to be given effect: Estate of Young at para. 38
If you need any help, please feel free to contact us using the contact form below.
M-F 9:00-5:00