WESA’s Curative Provision
Section 37 of British Columbia's Wills Estates and Succession Act (WESA) sets out three formal requirements for a valid will. The will must be in writing, signed by the will-maker in the presence of two or more witnesses, and signed by two or more witnesses in the presence of the will-maker.
However, a document that does not comply with the formal requirements of a will is not fatal to its validity—such a document may be cured in accordance with section 58 of WESA and still be found valid.
For a document to be cured under section 58 of WESA, the party seeking it to be cured must demonstrate (1) the testamentary document is authentic and (2) the testamentary document contains the full, final and fixed intention of the will-maker.
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. In determining whether these facts are met, the court will consider the deceased’s signature, the deceased’s handwriting, witness signatures, revocation of previous wills, funeral arrangements, specific bequests, and the title of the document, among others.
Since section 58 of WESA was enacted in 2014 and the introduction of similar legislation in other provinces, Canadian courts have increasingly been called upon to determine whether informal or unassuming documents qualify as valid wills. In many cases, these documents were handwritten notes that did not on their face comply with the formal requirements. Notably, the following documents have been declared valid wills:
- A handwritten note on a napkin (see Gust v. Langan, 2020 SKQB 42);
- A document on a computer (see Hubschi Estate (Re), 2019 BCSC 2040);
- A “fill in the blank” style document (see Groskopf v. Rogers et al, 2023 ONSC 5312);
- A signed, handwritten document (see Clarke Estate (Re), 2023 BCSC 103); and
- A notebook (see Salmon v. Rombough, 2024 ONSC 1186).
Conversely, the following were not valid wills:
- A handwritten note on a balance sheet (see Dela Cruz Estate (Re), 2023 BCSC 843);
- A handwritten note on hotel stationary (see Estate of Aiton, 2023 BCSC 1049); and
- A journal entry in a spiral notebook (Hadley Estate (Re), 2017 BCCA 311).
As seen in the examples above, whether a document is found to be a valid will comes down to the specific factual circumstances and the deceased’s intention – not what the purported will was written on or how it was written.
Recent Decisions of the BCSC
Two recent decisions of the British Columbia Supreme Court demonstrate examples of the types of factors the courts will consider when determining whether to “cure” a document.
In McGavin Estate (Re), 2023 BCSC 819, the deceased died without leaving a formal will. The deceased had no children or a spouse at the time of her death. Pursuant to intestacy rules under WESA, in the absence of a valid will, the deceased’s estate would have gone entirely to her brother, who the deceased had been estranged to for many years.
However, an envelope was found at the deceased’s home titled “Lawyer’s Info re Estate”. The envelope contained two letters from the deceased’s lawyer. The first letter contained a summary of the deceased’s estate and a list of decisions she needed to make for her proposed will. The first letter was marked up with the deceased’s handwriting and included a list of beneficiaries. The second letter was a reporting letter and set out a proposed distribution of the deceased’s estate. The deceased did not confirm the proposed distribution as set out in the second letter.
While the letters were not formatted along the lines of a typical will, they summarized the deceased’s assets and liabilities and her instructions for dividing her estate. The Court found that the letters were authentic and represented the full, final and fixed intention of the deceased and therefore complied with the requirements of s. 38 of WESA.
In Noel Estate (Re), 2023 BCSC 2473, the deceased had a dream where her former spouse told her that he would be disappointed if she did not leave part of her estate to his children. Accordingly, the deceased wrote a letter indicating her desire to alter her former will (which divided the estate between her biological children), to dividing the estate between the deceased’s biological children and her former spouse’s children. The letter was signed by the deceased in front of two witnesses.
The Court found that the letter reflected the deceased’s intentions and properly altered her former will. While the letter was “sparked” from a message in a dream, the evidence presented demonstrated that the dream impacted the deceased’s intentions, and she subsequently took several steps to implement changes to the distribution of her estate.
Key Takeaways
Keep the above principles and considerations in mind when preparing documents that may indicate your testamentary intentions but that do not meet the formal requirements of a will, as such documents could end up displacing your formally valid will or otherwise creating a will.
Further, if you are acting as the personal representative of an estate, ensure you conduct a thorough search for documents that could be considered a testamentary document, and not just documents that clearly comply with the requirements of s. 37 of WESA.