by David Hobbs
The law in British Columbia changed with S. 58 of the Wills, Estates and Succession Act to provide the Court with statutory power to cure deficiencies in people making, revoking, altering and reviving wills even though the person did not comply with all formal legal requirements to do so.
S. 58 broadly defines what may constitute a record. If the Court finds that a record, document or writing or marking on a will or document represents: the testamentary intentions of a deceased person; the intention of a deceased person to make, revoke, alter or revive a will or testamentary disposition of the deceased person; or the intention of a deceased person to revoke, alter or revive a testamentary disposition contained in a document other than a will, the Court may order that the record or document or writing or marking on a will or document be fully effective as though it had been made in a legally proper manner. The section also gives the Court power to deal with words made illegible by alterations if the Court can find what the original word was.
In Australia in a 2010 case where a lawyer had prepared a will for a testator but, the will was never signed due to the testator passing away in hospital, the Supreme Court of Western Australia held the unsigned will was effective as if it had been signed.
In a 2012 case in the High Court of New Zealand, where a testator had given clear instructions to his solicitors to prepare a will which they had recorded in notes, but the will preparation was disrupted by an earthquake, the notes were held effective as if they constituted a properly executed will.
In December, 2017 our firm was successful in BC Supreme Court obtaining an Order under s. 58 of WESA that an unsigned will prepared by solicitors be treated as the deceased’s effective will. This may be the first time a BC Court has made such an order regarding an unsigned will.
The Court must be satisfied on all the evidence that the document or writing or markings represent the final wishes of the deceased. In cases where the evidence suggests the will maker may still be considering the content of a draft will or persons involved with the deceased have influence regarding the will maker attempting to finalize the will, the Court may decide that the evidence is not sufficient to cure the deficiency. In these cases the distribution of the estate may revert to an earlier will or intestacy where distribution is governed by statute. These types of Orders are not made by the Court lightly and require a sound evidentiary base. Two cases in BC where applicants under s. 58 have attempted to cure deficiencies, prior to our recent decision, were not successful in obtaining a curing of the deficiencies in issue in those cases.