Goehly Estate (Re), 2023 BCSC 248

In the case of Ludwig Wilhelm Goehly (the “Deceased”), who passed away on January 17, 2021, an unsigned and undated document titled “this is the last Will of me, Ludwig Wilhelm Goehly dated ____, 2019” was found among his possessions. This document, referred to as the “2019 Draft,” did not meet the formal requirements for a will under the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 [WESA].

The central issue was whether the 2019 Draft could be cured under section 58 of WESA, which allows the court to order that a document be effective as the will of a deceased person, even if it does not comply with the required formalities. The petitioner sought a determination under section 58 of WESA to establish whether the unsigned 2019 Draft represented the testamentary intention of the Deceased.

Legal Principles:

1. Formal Requirements for a Valid Will:

• • Section 37(1) of WESA outlines the formal requirements for a valid will, including that it must be in writing, signed at its end by the will-maker in the presence of two or more witnesses, and signed by the witnesses in the presence of the will-maker.

2. Court’s Curative Power:

• • Sections 37(2) and 58 of WESA authorize the court to order that a document be effective as a will, even if it does not comply with the formal requirements, provided it represents the testamentary intentions of the deceased.

3. Testamentary Intention:

• • The 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. Factors such as the presence of the deceased’s signature, handwriting, witness signatures, and the title of the document are relevant to establishing testamentary intention.

4. Extrinsic Evidence:

• • The court should consider extrinsic evidence of testamentary intent, including events that occurred before, when, and after the document was created.

5. Context-Specific Analysis:

• • • Factors such as whether the document was made by the deceased or a third party, where it was found, its compliance with formal requirements, its title, the language used, and its consistency with other evidence of the deceased’s intentions are relevant to the analysis.

Conclusion:

In this case, the court determined that the 2019 Draft was authentic and contained the full, final, and fixed intention of the deceased. Despite the document being unsigned and undated, the court found that it represented the deliberate, fixed, and final testamentary intention of the Deceased. Therefore, the court ordered the unexecuted 2019 Draft to be fully effective under section 58 of WESA.