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WESA Section 58 Fixing Invalid Will

WESA Section 58 Fixing Invalid Will lawyers handle cases where someone expresses a “Will like” wish but it does not comply with the normal formal requirements to make a Will. They could use a homemade Will form but not get it witnessed, they could leave a suicide note with instructions to divide their estate,  they could have typed out notes on their computer or even sent a text message with “Will like” instructions. In the old days all of these “Will like ” documents would be disregarded by the Courts.

WESA Section 58 Fixing Invalid Will Lawyers 1-877-602-9900

However, a new section of BC’s Wills and Estates legislation known as  “WESA” can fix some of these defective or deficient Wills. Section 58 of WESA is remedial in nature, it confers a broad discretion on the court to order that a “record or document or writing or marking on a will or document” be fully effective, despite non-compliance with the statutory requirements. But there are still limits on fixing defective “Will type” documents. For an order to be granted under s. 58 of the WESA, the court must be satisfied that a document is both authentic and that it represents the settled testamentary intentions of the deceased person.

WESA Section 58 Fixing Invalid Will

WESA Section 58 Fixing Will Lawyer Lorne N. MacLean, QC 604-602-9000

In Hadley Estate the Court of Appeal upheld a trial judge’s ruling refusing to fix a potentially “will like ” document.

In Hadley the deceased woman had prepared a valid earlier Will leaving bequests of her sizeable estate to her nieces.  Six Years later later  she wrote notes in a journal that expressed some thoughts on her estate division that left these nieces completely out of her estate. Instead she made no mention of them and she made statements in this journal of wanting to give her entire estate to people she recently met. She never made mention of these wishes written in her journal to anyone.

WESA Section 58 Fixing Invalid Will – The Court Of Appeal Explains The Legal Test

The Court of Appeal upheld this ruling the journal was not capable of being cured because:

  • handwritten potentially Will like statements in a journal did not represent a deliberate and final expression of the deceased’s testamentary intentions, such that it could not be declared fully effective pursuant to s. 58 of the WESA;
  • although it had “Will like” wording the notes indicated she admitted to being confused at the time of the journal entry and she never explained why her nieces would suddenly be cut out of her estate although it was a substantial estate;
  • the deceased never told anyone about the wishes in her journal;
  • she had made an appointment with a lawyer to change her 2008 Will and new of the requirements to Change her Will;
  • the extrinsic evidence of the Will makers situation at the time of the journal notes was properly relevant to this issue and seemed to indicate they were notes to herself only;
  • As such the lower court finding that the document did not represent the deceased’s testamentary intentions and, accordingly, could not be cured under s. 58 was without error.

The Steps  For A WESA Section 58 Fixing Invalid Will Application Are:

WESA Section 58 Fixing Invalid Will

Fraser MacLean articled student Vancouver WESA Section 58 Fixing Invalid Will Lawyers

  1. The first and obvious threshold issue:  is the document authentic? If so;
  2. Does the non-compliant document represent the deceased’s testamentary intentions as a deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death.

WESA Section 58 Fixing Invalid Will – There Are Limits

[37]      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:  George at para. 81.

[40]         Sitting as a court of probate, the court’s task on a s. 58 inquiry is to determine, on a balance of probabilities, whether a non-compliant document embodies the deceased’s testamentary intentions at whatever time is material.  The task is inherently challenging because the person best able to speak to these intentions – the deceased – is not available to testify.  In addition, by their nature, the sorts of documents being assessed will likely not have been created with legal assistance.  Given this context and subject to the ordinary rules of evidence, the court will benefit from learning as much as possible about all that could illuminate the deceased’s state of mind, understanding and intention regarding the document….extrinsic evidence of testamentary intent is admissible on the inquiry: Langseth Estate v. Gardiner (1990), 75 D.L.R. (4th) 25 at 33 (Man. C.A.); Yaremkewich Estate (Re) at para. 32; George.  As is apparent from the case authorities, this may well include extrinsic evidence of events that occurred before, when and after the document was created: see, for example, BennettGeorgeEstate of YoungRe MacLennan Estate (1986), 22 E.T.R. 22 at 33 (Ont. Surr. Ct.); Caule v. Brophy (1993), 50 E.T.R. 122 at paras. 37–44 (Nfld. S.C.)

Call our BC WESA Section 58 Fixing Invalid Will lawyers today at 1-877-602-9900 if you have an issue with the formal validity of a BC Will. Our WESA Section 58 Fixing Invalid Will have 5 offices across BC and have lawyers fluent in Mandarin, Cantonese, Punjabi among several other languages.



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