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| Aaron Pearl |
COVID-19 physical distancing protocols make it difficult for will-makers to be present with two other people for the witnessing of the will. This is exacerbated by the fact that even if a person is isolated in their home with two or more individuals, those individuals may be family or friends who are intended to inherit under the will and any gift to those individuals would be void if they, or their spouses, were to witness the will (WESA, s. 43).
These complications were recently addressed in B.C. by Ministerial Order M161, allowing for the virtual witnessing of wills (Ministerial Order M162 addressed the virtual witnessing or powers of attorney and representation agreements). Nevertheless, as virtual witnessing may prove difficult for those who are not technologically inclined or for other reasons, it is worthwhile to explore the powers of the court in B.C. pursuant to s. 58 of WESA to cure deficiencies in a testamentary document.
This article will review cases where s. 58 of WESA has been successfully relied upon to validate otherwise invalid wills. In an article to follow, unsuccessful attempts will be reviewed.
The test for finding a document to be effective under s. 58 of WESA was set out by Justice Gail Dickson in Young Estate (Re) 2015 BCSC 182. In summary:
- The first threshold issue is whether the document in question is authentic;
- The second, and core, issue is whether the non-compliant document represents the deceased’s testamentary intentions. A testamentary intention means much more than the expression of how a person would like his or her property to be disposed of after death. Rather, the document must record a deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death.
In Akins Estate (Re) 2019 BCSC 738, the British Columbia Supreme Court reviewed a master’s decision that a hand-written document signed by the deceased could not be made effective under s. 58. The document was titled “Wishing on my passing” and included the deceased’s wishes regarding his remains and the distribution of some specific gifts and the remainder of his estate. The master declined to cure the deficiencies in the document as it was found that giving testamentary effect to the document would, in effect, amend WESA to eliminate any requirement that a testamentary instrument be properly executed. The master found the deceased had not made requisite efforts to have the document in question comply with the requirements under WESA. Amusingly, the master included in his reasons that giving effect to the document would mean that following s. 37 of WESA, the Act may as well read: “UNLESS THE WILL-MAKER DOESN’T WANT TO OBEY THIS SECTION.”
The BCSC disagreed. The court reviewed the history of s. 58 and emphasized its remedial objective. The court made the following comments regarding important factors that guided the decision: “The deceased clearly set out the manner in which not only his estate should be distributed, but also the arrangements which should be made with respect to the disposal of his remains. The deceased also took the step of placing the document in his safety deposit box. I take this to be an indication that he considered this to be an important document which would come to light on his death.”
While the document at issue was not witnessed, the court stated that had the testator taken the step of having two persons witness the document there is no question that it would have been a valid will under WESA. This is therefore a clear example of a case where the deceased’s clear testamentary intentions overcame the document’s non-compliance with WESA and a document created without legal advice was given legal effect.
In Bizicki Estate (Re) 2019 BCSC 2142, the court arguably stretched s. 58 further with the validation of some brief notes left by the deceased, Alex Bizicki. The deceased’s girlfriend, Eva Chow, had found three notes in his room after his death which had varied contents:
- The first note was dated but unsigned, and stated that in the event of his death the only person who has permission to disturb anything in Bizicki’s room is Chow;
- The second note was unsigned and undated, and stated that the deceased leaves his “personal property, clothing, etc.” to Chow. The note also listed the names of a few individuals and next to one of the names it said “Executor?”; and,
- The third note was signed but not dated. It said that the deceased wished for his personal estate, including “all moneys”, to be used to pay off his cremation and debts and the total left over was to be “awarded to” Chow.
The mixed contents of the three notes received mixed results in court. The first note was found not to contain a statement of testamentary intent and was not given legal effect. The second note was found to be lacking of a clear testamentary intention to appoint any of the listed persons as an executor of the deceased’s estate. However, the portion of the second note relating to the deceased’s personal property was found to express a deliberate final intention and was given legal effect, despite that the note was unsigned. The third note was given legal effect as it was found to outline a sensible procedure for the use of the deceased’s funds and was found to go beyond “aspirational language.”
As in Akins Estate, the court in Bizicki Estate recognized that the deceased’s testamentary intentions were clear enough, and final enough, to overcome deficiencies.
These two cases are exemplary of how s. 58 can assist individuals who have attempted to communicate their testamentary intentions without obtaining legal advice and without following the requirements of the statute. Due to the physical distancing restrictions caused by COVID-19, such situations may be more prevalent at this time. However, while these cases are of great interest they should also be read with caution. The failure of a document to comply with the formal requirements of a will is sure to cause great expense and uncertainty for beneficiaries. As always, legal advice is strongly recommended in estate planning.
This is part one of a two-part series.
Aaron Pearl, TEP is a lawyer at Clark Wilson LLP in Vancouver, practising in the area of estate and trust litigation.
Photo credit / nathaphat ISTOCKPHOTO.COM
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