- 58 – If you think you have a will, you may have a way
British Columbia’s Wills, Estates and Succession Act (“WESA”) came into force in B.C. on March 31, 2014.
WESA is an amalgamation and revitalization of prior estate related statutes. WESA contains many provisions which did not previously exist in the statutes it replaced, effectively changing the legal landscape of estate law in British Columbia. One such provision and the focal point of this article, is section 58, aptly known as the ‘curative provision’ since it holds the potential to ‘cure’ a document which does not meet the statutory requirements of a valid will.
The idea of a curative provision in the context of wills and estates is not a new one. In fact, curative provisions exist in statutes throughout Canada, for example in Saskatchewan, Prince Edward Island and Manitoba, the latter province’s provision being most similar to British Columbia’s curative provision.
To understand the purpose and effect of a ‘curative provision’ one must understand the formal statutory requirements for a valid will, as well as, the dominant purpose of the court when construing an alleged will.
REQUIREMENTS AND JUDICIAL AIM
The formal requirements for a valid will vary depending on the jurisdiction. Under s. 37 of WESA, to make a valid will in British Columbia the document must be:
a) in writing;
b) signed at its end by the will-maker, or the signature at the end must be acknowledged by the will-maker as his or hers, in the presence of two or more witnesses at the same time; and
c) signed by two or more witnesses in the presence of the will-maker.
The overarching purpose of the court when faced with a will is to give effect to the intentions of the will-maker. The ‘essential quality’ of testamentary intention has been described as being a ‘deliberate or fixed and final expression of intention as to the disposal of his/her property on death’. It has been stated that the statutory requirements assist the court in effecting testamentary intention.
In the well-known Manitoban case of George v Daily, a case which dealt with Manitoba’s curative provision, the court referred to the main purposes or functions of the statutory requirements for valid will making as:
(1) the “evidentiary” and “cautionary” functions in which the requirements of writing, signature and attesting witnesses impress the participants with the solemnity and legal significance and provide the court with reliable evidence of testamentary intent and of the terms of the will;
(2) the “channelling” function, in which the formal requirements result in a degree of uniformity in the organization, language and content of most wills; and
(3) the “protective” function, in which the formal requirements may protect the testator from imposition or fraud.
However, strict adherence to statutory formalities has led to situations where the court has been unable to grant probate of a will due to a missing witness signature, or because both witnesses were not present at the same time, or by reason of any defect leading to an imperfectly conforming will. As one may imagine, this has the effect of creating situations where a will-maker’s intentions, rather than being honored, were being defeated as surely the will maker did not intend to die intestate.
Enter the curative provision. Various enacted curative provisions enable the court to grant probate of a will even though a statutory requirement was not followed. But, by loosening the requirements to probate a will, to what extent is there potential for fraud, abuse, or undue influence? There is a balance which must be struck and by looking at various statutes, one notices that through the language of each respective provision each jurisdiction achieves a different balance.
So where does British Columbia fall in this spectrum?
THE BC REALITY
- 58 of WESA reads as follows:
Division 5 — Curing Deficiencies and Rectification of Wills
Court order curing deficiencies
58 (1) In this section, “record” includes data that
(a) is recorded or stored electronically,
(b) can be read by a person, and
(c) is capable of reproduction in a visible form.
(2) On application, the court may make an order under subsection (3) if the court determines that a record, document or writing or marking on a will or document represents
(a) the testamentary intentions of a deceased person,
(b) the intention of a deceased person to revoke, alter or revive a will or testamentary disposition of the deceased person, or
(c) the intention of a deceased person to revoke, alter or revive a testamentary disposition contained in a document other than a will.
(3) Even though the making, revocation, alteration or revival of a will does not comply with this Act, the court may, as the circumstances require, order that a record or document or writing or marking on a will or document be fully effective as though it had been made
(a) as the will or part of the will of the deceased person,
(b) as a revocation, alteration or revival of a will of the deceased person, or
(c) as the testamentary intention of the deceased person.
(4) If an alteration to a will makes a word or provision illegible and the court is satisfied that the alteration was not made in accordance with this Act, the court may reinstate the original word or provision if there is evidence to establish what the original word or provision was.
It is arguable that s. 58 of WESA is the most liberal curative provision in Canada. Unlike similar provisions in other provinces, s. 58 explicitly defines ‘record’ to include electronic records. While ‘electronic record’ could possibly be read into the wording of other legislation, such as s. 23 of Manitoba’s Wills Act, the fact that WESA overtly identifies electronic records as being able to express testamentary intention is, in this author’s opinion, quite a leap.
So what does this mean? It seems plausible that if given the right set of facts a B.C. court could, under s. 58, find any electronically held document purporting to dispose of one’s property, such as in a text message, e-mail or a post/message on Facebook or Twitter, to constitute a valid testamentary disposition. B.C. wouldn’t be the first jurisdiction to make such a declaration as, for example, the Supreme Court of Queensland has found that a disposition typed entirely on an IPhone ‘notes’ application and unwitnessed did constitute a legally valid will.
Ultimately, given WESA’s relatively recent enactment there is yet to be any case law to guide British Columbians on how s. 58 may be applied, meaning at this point the impact of the new legislation is yet to be determined. What is clear, however, is that given the unique wording of s. 58, any future legal impact may be significant.
If you are a hopeful beneficiary trying to a probate a formally invalid will, then s. 58 may be your saving grace. Further, whether s. 58 will operate to actually undermine testamentary intention rather than bolster it will only be determined through subsequent judicial interpretation of s. 58.
 Molinary v Winfray, 1961 SCR 91