Last spring, the Wills, Estates and Succession Act (“WESA”) came into force, modernizing estate law in British Columbia. WESA was created in order to provide greater certainty to will-makers and those responsible for estate distribution. Among many important changes to the law, section 58 of WESA enables courts to declare documents effective as wills even if they do not meet the formal signing and witnessing requirements in Vancouver, BC. Ms. Young’s will was executed on March 2, 2009 and the Canada Trust Company was appointed as her executor. One clause in Ms. Young’s will instructed the executor to dispose of ornamental items or items of personal, domestic, and household use in accordance with a memorandum that would be left with her will. The memorandum, as described in the will, was not found and may not have been prepared. The validity of this will was not in question as it was properly signed and witnessed.
At the age of 69, Ms. Young passed away in her home on or around July 10, 2014. Approximately two weeks later, a Canada Trust employee found two documents on Ms. Young’s dining room table. The first document was signed and dated June 17, 2013 (the “June 17 Document”). The second document was unsigned and dated October 15, 2013 (the “October 15 Document”).
Canada Trust sought directions from the court on whether or not the documents:
a) represented Ms. Young’s testamentary intentions; and
b) should be deemed effective as though they had been made as part of her will, an alteration to her will, or as separate testamentary dispositions.
The Court’s Approach
Prior to the enactment of WESA in BC, many other provinces already had curative provisions included in their wills and estate administration legislation. In Estate of Young, Madam Justice Dickson noted how section 23 of Manitoba’s Wills Act is most similar to section 58 of BC’s WESA. Given the lack of case authority interpreting section 58 of WESA and the similarity of Manitoba’s curative provisions, Madam Justice Dickson found it helpful to consider Manitoba authorities in her judgment.
Influential Authorities from Manitoba
Kuszak v. Smoley (1986) 23 ETR 237 (Man. QB.)
A variety of factors were taken into account by the court when determining whether or not a defective document reflected the deceased’s testamentary intentions. For example, the court noted that the document was partially written in the deceased’s handwriting. Additionally, the document was dated, identified as a will, and signed by the deceased. The court also suggested that outside evidence relating to the deceased’s intentions could be taken into account.
George v. Daily, 1997 3007 (MB CA)
This case is the leading authority relating to section 23 of Manitoba’s Wills Act. In George, Philp JA argued that not every expression respecting the disposition of property on death embodies the testamentary intentions of the deceased. The court confirmed that “testamentary intention” means more than the expression of how someone would like their property to be disposed of after death. Further, Philp JA clarified that the essential quality of “testamentary intention” is that there must be a deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death.
McNeil v. Snidor Estate, 2008 MBQB 187
In McNeil, the court referred to the factors set out in Kuszak in order to determine whether or not a defective will form filled out in the deceased’s handwriting should be admitted to probate.
Sawatzky v. Sawatzky, 2009 MBQB 222
In this case, the court relied on the legal reasoning employed in George. After the deceased was diagnosed with cancer, he asked his lawyer to create a formal will prepared in the same terms as a previously made holograph will. After the lawyer drafted the first version of the will, the deceased listed some changes he wanted his lawyer to make. The lawyer noted these modifications on his copy of the document and returned the following day with an updated version of the will. However, the deceased passed away before he could sign the document.
Aside from the lawyer’s testimony, the court found no additional evidence that the deceased reviewed either version of the will. Additionally, the court noted that although the deceased was facing imminent death, he did not tell his lawyer that his instructions were final. The lawyer also made changes to the document without the deceased’s instruction so the document did not represent the deceased’s intentions in its entirety. Ultimately, the court referred to the standard set out in George and decided that the document was not a deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death.
In Estate of Young, Madam Justice Dickson extracted two main issues for consideration from the Manitoba authorities. These issues are whether or not the document is authentic and if the document represents the deceased’s fixed and final testamentary intentions.
Madam Justice Dickson also stated that the applicable burden of proof is a balance of probabilities. This means that the court must find the document to be “more likely than not” a reflection of the deceased’s final intentions with regards to the disposition of his or her property after death.
Most significantly, Madam Justice Dickson stated that a wide range of factors might be relevant in order to establish the existence of the deceased’s testamentary intentions in each case. Drawing on the case law from Manitoba, Madam Justice Dickson listed the potentially relevant factors as the presence of the deceased’s signature, signatures of witnesses, the deceased’s handwriting, funeral arrangements, the revocation of previous wills, the title of the document, and specific bequests. However, Madam Justice Dickson also cautioned that the court’s decision to either cure or disregard a defective document is inevitably and intensely fact-sensitive. Madam Justice Dickson also explained that the further a document departs from the formal requirements, the harder it may be for the court to find that it embodies the deceased’s testamentary intentions.
With respect to the June 17 Document, the court found this document to be a valid expression of Ms. Young’s wishes as to the disposal of the listed property after her death. Some of the context-specific factors considered by the court were that the document was generally consistent with the provisions of Ms. Young’s previously made will, the language used in the document conveyed an air of finality, and that Ms. Young signed the document. The court determined that Ms. Young’s signature signaled her knowledge and approval of the document’s contents. The court also noted that Ms. Young provided a copy of this document to her friend Ms. Sunderland. Madam Justice Dickson also inferred that Ms. Young placed the signed copy on her dining room table so that it would be found after her death.
The court did not come to the same conclusion with regards to the October 15 Document. Madam Justice Dickson determined that the document only contained an expression of Ms. Young’s non-binding wishes relating to some of her earlier dispositions. For example, the document was unsigned and its heading was more in the style of a letter than a testamentary document. Further, Ms. Young did not mention the existence of this document to her friend Ms. Sunderland. Standing alone or read with the will and the June 17 Document, the court decided that the October 15 Document did not constitute a disposition and would not be treated as part of the will.
Madam Justice Dickson’s approach in Estate of Young will likely guide the courts when considering the application of section 58 of WESA in the future. Estate of Young also demonstrates how WESA adds both flexibility and uncertainty to the law relating to wills and estate distribution in BC. For example, although the courts can now rectify a defective will, it is difficult to predict whether or not a document will be upheld as a valid testamentary document. As stated by Madam Justice Dickson, a decision with respect to the court’s curative powers is context-specific. For this reason, following the formal requirements for the preparation of a will is still the most effective way to ensure that a will-maker’s intentions will be recognized.
While Madam Justice Dickson’s decision provides valuable insight with regards to the defective documents in Estate of Young, what kinds of documents will the court use their curative powers to rectify in the future? Will statements written in e-mails be considered an embodiment of the deceased’s true intentions? What factors will be taken into account when analyzing text messages or posts on social media like Facebook or Twitter? It will be interesting to see how the approach taken in Estate of Young will influence the courts as they navigate these issues in the future.