Court's Power to Cure Deficiencies and Rectify Wills (16:V)
| This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on August 22, 2024. |
Section 58 of WESA gives the court the power to recognize any “record” that gives effect to the testamentary disposition of the deceased, even if it does not comply with the formalities of WESA and/or the common law. This means that the court can give effect to a document or other record that contains a testamentary disposition. As such, individuals should be cautious about drafting documents that may be construed as a testamentary disposition.
The leading case on section 58 is Estate of Young, 2015 BCSC 182, in which the court considers case law from Manitoba with a similar provision (section 22 of the Wills Act, CCSM W150) in order to interpret section 58.
The court observes that the curative power of section 58 is very fact-sensitive and that the purpose of the section is to cure formal invalidities and not to be used to uphold a will that is invalid for any substantive reasons. For example, the court can uphold a will that does not adhere to the format that a will should take under WESA; however, it cannot uphold a will that is deemed invalid because of testamentary incapacity or undue influence.
There are two principal issues for consideration that the court takes into account when assessing whether an impugned document should be recognized:
- Whether the document is authentic.
- Whether the non-compliant document represents the deceased’s testamentary intentions. The court then goes on to specify: “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 paragraph 36 of Estate of Young, the court includes a non-exhaustive list of factors that may be taken into consideration when assessing a document:
- the presence of the deceased’s handwriting;
- witness signatures;
- revocation of previous wills;
- funeral arrangements;
- specific bequests; and
- the title of the document.
Additionally, in Jakonen Estate (Re), 2022 BCSC 2261 at para 44, the court identified other relevant factors for assessing a document's likelihood of being given effect:
- 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.
- 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.
- 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.
- If a document or record is given the title "will" or "codicil" or a similar notation, it is more likely to be given effect.
- 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.
- Does the document or record provide for a rational distribution? If so, it is more likely to be given effect.
- Is the document or record consistent with other evidence of the Deceased's intentions? If so, it is more likely to be given effect.
Although section 58 gives the court broad powers to give effect to the intentions of the will-maker, this power does have limitations. For example, in Lane Estate, 2015 BCSC 2162, the court did not give effect to the will-maker's informally written notes because they were inconsistent with the original will and did not explicitly revoke it. Therefore, every effort should be made to follow the proper procedure when drafting a will in order to avoid future complications. As the court notes in Estate of Young, 2015 BCSC 182. While imperfect or even non-compliance with formal testamentary requirements may be overcome by application of a sufficiently broad curative provision, the further a document departs from the formal requirements, the harder it may be for the court to find it embodies the deceased’s testamentary intention.
See also Levesque Estate (Re), 2019 BCSC 927; Hadley Estate,(Re), 2017 BCCA 311; and Dickinson-Starkey Estate (Re), 2022 BCSC 93.
Section 59 of WESA gives the courts the power to rectify an error or omission in a will in order to give effect to the intentions of the will-maker. Extrinsic evidence is permissible to determine the intent of the will-maker. This is a significant provision, as it allows the courts to consider evidence that would otherwise not be admissible in order to determine the intent of the will-maker.
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