By Stuart Cappus
To be valid, a will must be in writing, signed by the will-maker in the presence of two witnesses who are present at the same time, and signed by those two witnesses in the presence of the will-maker. Historically in BC, a will could not be admitted to probate unless these formal requirements were met. This sometimes led to a will-maker’s testamentary intentions being defeated for no good reason other than failing to strictly comply with these formalities.
Section 58 of the Wills, Estates and Succession Act (WESA), which came into force in 2014, was enacted to address that situation. This provision provides that the Court can order that a record, document or writing or marking on a will or document be fully effective as a will if satisfied that it represents the testamentary intentions of the deceased person. Section 58 is a remedial or curative provision that gives the Court discretion to dispense with the formal requirements of a will. It is one of WESA’s most far-reaching provisions and marks a significant departure from the traditional legal principles that historically governed the creation, alteration and revocation of wills in BC.
There are some preconditions that must be met before the Court will even consider giving effect to a will-like document. First, the document must be authentic meaning that it was actually created by the deceased person. Second, the deceased person must have had sufficient mental capacity to make the document as of its date. Finally, the document cannot have been a product of undue influence being exerted on the deceased person by someone else.
The core question to be determined is whether the document represents the deceased person’s testamentary intentions. This means that the document records a deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death. A wide range of factors may be relevant to this analysis including:
• the title of the document;
• whether it is written in the deceased’s handwriting;
• whether it revokes prior wills;
• whether it appoints an executor;
• whether it contains specific bequests;
• whether it provides for funeral arrangements;
• whether it is signed by the deceased person; and
• whether it is signed by witnesses.
The Court is also entitled to consider extrinsic evidence meaning evidence beyond the document itself. This can include events that happened before, when and after the document was made. The purpose of this is to give the Court as much information as possible about the deceased’s state of mind, understanding and intention regarding the document.