Challenging the Validity of the Will

Prior to the introduction of WESA, the requirements for a valid Will were absolute and the Courts could not circumvent them

For a Will to be considered valid, WESA outlines the following formal technical requirements that ought to be met:

  1. The will must be in writing;
  2. The will must be signed at its end by the will-maker; and
  3. The will must be signed in the presence of two or more witnesses.

WESA further outlines who can witness a will:

  1. Witnesses to a will-maker’s signature must be 19 years of age or older;
  2. A person may witness a Will even though he or she may receive a gift under it, but the gift may be void under section 43 [gifts to witnesses]; and
  3. A Will is not invalid only because a witness was, at the time the Will was signed by the will-maker, or afterwards became, legally incapable of proving the Will, unless the witness was not 19 years of age or older at the time the will was signed by the will-maker.

After the introduction of WESA, a higher degree of mental capacity is needed to revoke a will. A will can only be revoked if a person (Section 55):

  1. Makes a new will;
  2. Writes a declaration revoking their previous Will or part of their previous Will; and
  3. Destroys the will with the intention to revoke it.

Prior to the introduction of WESA, the requirements for a valid Will were absolute and the Courts could not circumvent them. However, with the introduction of Section 58 in WESA, judges have the power to order a document, record, writing or marking on a Will to be fully effective as a person’s last Will. In other words, what could constitute a Will is now wide open.

Curing Deficiencies in Wills

WESA has introduced, through Section 58, the ability for the Courts to show more leniency with finding a Will valid where it otherwise may be invalid due to a failure to conform to the strict execution requirements. This is a beneficial section for those that believe a record that was drafted after the Will by the will-maker more accurately reflects their intentions. The definition of “record” in Section 58 includes data that is stored electronically, clearly recognizing that a document that does not comply with any of the formalities may still be considered a Will.

The formal requirements stipulated in the previous Wills Act were that for a Will to be valid it must be in writing, signed by the will-maker with the presence and signature of two witnesses. The problem occurs when the Courts have had to strictly comply with these formal requirements in cases where it may be evident that it does not reflect the intentions of the will-maker.

An example of this can be found in the case of Bolton v Tartaglia RSBC 1996, c. 128, where Justice Hood stated “The law has remained steadfast over the years. While often regretting having to find a Will to be invalid, the Courts have invariably done so when the requirements of the Act were not met …” (para 12). In Brown Estate, Re 1954 OWN 301 #2, the will maker did not sign the Will in the presence of both the witnesses at the same time and thus the will was declared invalid.

The introduction of Section 58 potentially unshackles the handcuffs that had once bound the Courts. Importantly, under subsection (2) & (3):

(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.

Furthermore, there is also a curative provision in subsection (4) of Section 58:

(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.

A note regarding subsection (4) is that there does need to be evidence to establish what the original word or provision was before courts can order this.

This progressive British Columbia provision is based on a similar Manitoba provision and the Courts have relied on decisions made by the Court of that province in the cases considering s. 58. Leading decisions in Manitoba reflect the Courts’ consideration of the formalities that are required for drafting a will. Specifically, the issue is whether the document in question truly reflects the deceased’s final intentions about the allocation of their property.

The British Columbian case Estate of Young 2015 BCSC 182 was the first case reported where the Section 58 curing provisions were used. In that case, two documents were at issue where an administrator asked the courts to determine whether the documents reflected the testamentary capacity of the deceased. One of the documents was found, on the balance of probabilities, to represent the testamentary capacity of Ms. Young while the other was found not to be a “deliberate expression of Ms. Young’s wishes as to the disposal of property on her death.” From the decision in this case, it is evident that the further a document departs from the formal execution requirements the harder it may be to find the required testamentary intention.

There have been several indicators of testamentary intent that have been cited by the Courts in British Columbia when considering the validity of documents other than a properly executed will. These include whether the document was dated, whether the handwriting was that of the testator, whether the language had an air of finality to it, whether the document was provided to a third party, and whether there was an expressed belief that the document was valid.

In the BC Supreme Court decision of Smith Estate, two handwritten documents were the focus of the case. Many factors were looked at including the titles given to each document and the fact that the documents were fairly detailed on issues of personal property distribution. It was found that both documents represented the deliberate and final expressions of the deceased’s intentions.

Interestingly, another possible effect of Section 58 is that an administrator or personal representative may be required to extend their search to electronic or cloud-based documents that could reflect the deceased’s intentions. Although it is yet to be put in front of the Courts, it is conceivable that online records such as emails or even messages on social media in the future could be considered by the Courts in a Section 58 application.

Rectification of a Will

Section 59 of WESA deals with the rectification of Wills, allowing the courts to essentially “fix” a Will. By application, the Courts can rectify a Will in three situations:

  1. An error arising from an accidental slip or omission;
  2. A misunderstanding of the will-maker’s instructions; and
  3. A failure to carry out the will-maker’s instructions.

An application to rectify a Will must be made within 180 days from the date of the grant being issued unless leave is granted by the Court to make an application after this date. External evidence of the will-maker’s intent is permitted to shed light on the Will not accurately being drafted to reflect the intentions of the testator.

Who Can Apply to Vary A Will?

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