Mr. Herod’s lawyer prepared for him a draft will in 2015. The terms of the 2015 Will materially changed the distribution of Mr. Herod’s estate from the distribution in his 2014 Will.
Mr. Herod and his lawyer went back and forth on the phone about making arrangements to have the 2015 Will signed. The lawyer told Mr. Herod that a beneficiary or a spouse should not be a witness to his execution of the 2015 Will. The lawyer mailed the unsigned 2015 Will to Mr. Herod. The lawyer followed up but, Mr. Herod died before signing the 2015 Will.
The Court considered the curative powers under s. 58 of WESA. The Court needed to be satisfied the unsigned 2015 Will represented the testamentary intentions of Mr. Herod. The unsigned 2015 Will needed to be proven on a balance of probabilities to be a deliberate or fixed and final expression of Mr. Herod’s intention as to the disposal of his property upon his death.
In Mr. Herod’s circumstances the Court noted Mr. Herod did not say he had read the unsigned 2015 Will. There was no explanation as to why Mr. Herod had the unsigned 2015 Will from July 29, 2015 to September 30, 2015 but, did not sign it. The Court held something more was required and the evidence did not meet the burden of proving on a balance of probabilities the unsigned 2015 Will represented Mr. Herod’s final testamentary intentions. The 2014 will was granted probate.