One of Onyx Law Group’s two practice areas is estate litigation. Our cases vary significantly from client to client as each one seeks a just remedy in his or her circumstances. Estate disputes can arise in scenarios that revolve around the validity of a will or the actions of an executor. Claims can also be made on assets both inside and outside of a will.
Changing the Terms of a Will
a) Wills Variation Legislation
British Columbia is unique in Canada, as the only province in Canada with wills variation legislation (s. 60 of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13). This piece of legislation allows for a court to change the terms of a will in order to impose a fair distribution of assets, specifically in the case of a spouse or child who has not been provided an adequate, just and equitable inheritance.
b) Attacking the Validity of a Will
A will must meet formal requirements in law in order for it to be valid. If a deceased person failed to meet technical requirements such as proper signatures or was found to lack capacity to execute a will, or was unduly influenced to execute the will, the will may be found to be invalid. In these situations, a previous will or, if there is no previous will, the rules of intestacy will determine how the estate is distributed.
c) Applications to Cure a Will which is not otherwise Formally Valid
Sections 58 of the WESA is a brand new piece of legislation that allow applications to apply to “cure” the deficiencies of formal validity of a will (s. 58).
Specifically, section 58 provides:
- 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
Therefore, there is now much opportunity for applicants to try to “cure” the terms of a will to demonstrate the will maker’s intention with “records” that under previous legislation would have never held up as a will (including unsigned, electronic documents!). It is anticipated that the battle in these applications will be over the authenticity of the evidence that the purported “record” truly is the last record of the will maker’s testamentary intentions.
d) Applications to “Rectify” the Terms of a Will
Section 59 is another brand new provision of the WESA, which allows applicants to claim that the terms of a last will and testament need to be “rectified” to truly reflect the will maker’s testamentary intentions.
Specifically, s. 59 provides:
- 59 (1) On application for rectification of a will, the court, sitting as a court of construction or as a court of probate, may order that the will be rectified if the court determines that the will fails to carry out the will-maker’s intentions because of
- (a) an error arising from an accidental slip or omission,
- (b) a misunderstanding of the will-maker’s instructions, or
- (c) a failure to carry out the will-maker’s instructions.
- (2) Extrinsic evidence, including evidence of the will-maker’s intent, is admissible to prove the existence of a circumstance described in subsection (1).
- (3) An application for rectification of a will must be made no later than 180 days from the date the representation grant is issued unless the court grants leave to make an application after that date.
- (4) If the court grants leave to make an application for rectification of a will after 180 days from the date the representation grant is issued, a personal representative who distributes any part of the estate to which entitlement is subsequently affected by rectification is not liable if, in reasonable reliance on the will, the distribution is made
- (a) after 180 days from the date the representation grant is issued, and
- (b) before the notice of the application for rectification is delivered to the personal representative.
- (5) Subsection (4) does not affect the right of any person to recover from a beneficiary any part of the estate distributed in the circumstances described in that subsection.
Section 59 is different than s. 58 of the WESA because it presumes that the will is in of itself, a valid will. What s. 59 does is to provide an opportunity for the court to have more expanded powers to interpret, or construct the will so that it truly conforms with the will maker’s intentions.
As this is brand new law, it will be interesting to see how the courts will develop this law, and how far the court will be willing to use its powers of discretion to essentially, change the terms of a will that is otherwise valid on its face. Certainly, it can be anticipated that this new provision may well be claimed in conjunction with wills variation claims pursuant to s. 60 of the WESA. It also provides claimants who are not spouses or children of the deceased (and who cannot claim to vary a will in their favour as per s. 60 of the WESA) to have an additional cause of action to try to contest a will in their favour.
British Columbia Will Challenge Lawyers
At Onyx Law Group, we stand with those who seek legal recourse in the form of estate dispute litigation. In every case we work with our clients to decide on the best options to meet their individual needs and goals.