In Hadley Estate (Re), 2016 BCSC 765, the British Columbia Supreme Court was asked to use the discretion conferred by the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 (“WESA”) to cure deficiencies in a will – in other words, to relieve against the consequences of non-compliance with testamentary formalities. The specific issue was whether a handwritten journal entry could revoke an earlier formalized will.
Facts: Executing a will, then noting contrary wishes in a handwritten journal
Ms. Hadley executed a will in 2008 that was prepared by a lawyer. The beneficiaries under the 2008 will were Ms. Hadley’s three nieces. On September 1, 2014, after a health scare, Ms. Hadley wrote an entry in her journal, titled her “last will”, which stated that the beneficiaries of her $1.3 million estate were to be two male friends she had met in the latter years of her life and just one of the nieces who was named in the 2008 will. At the end of the journal entry, Ms. Hadley wrote that she hoped to see a lawyer to have the will formally prepared. Ms. Hadley never told anyone about the journal entry. She did telephone the lawyer who prepared the 2008 will to communicate that she intended to make a new will, but she died several months later before meeting with the lawyer.
Following her death in 2015 at the age of 93, the journal entry was discovered. Also found in her apartment was a 2014 letter from Canada Trust asking her to confirm that it continued to be executor of her 2008 will. There were handwritten notes on the letter stating that Ms. Hadley intended to make a new will.
Did the handwritten journal entry revoke the previously executed will?
Canada Trust applied to the court for a determination of which document governed Ms. Hadley’s estate: the 2008 will or the 2014 journal entry. Adair J. determined that while the journal entry was authentic, it did not represent a deliberate and final expression of Ms. Hadley’s testamentary intentions. As such, the journal entry did not have testamentary status and the deficiencies in form could not be cured under s. 58 of WESA. In the result, the 2008 will governed the estate.
In declining to exercise its discretion to cure the formal invalidity of the handwritten document in this case, Adair J. provided a succinct overview of s. 58 of WESA and the factors to be weighed in its application.
Scope of the discretion to cure deficiencies
Section 58 of WESA confers a broad discretion on the court to treat a record, document, or writing or marking on a will as valid even if it does not comply with the formal requirements of the statute. The provision can only be used to cure errors concerning formalities, and cannot cure substantive errors such as testamentary incapacity or undue influence. In previous posts, we discussed capacity and undue influence.
Exercise of the discretion to cure deficiencies
The first case to consider s. 58 of WESA was Estate of Young, 2015 BCSC 182, and it remains a leading case. It was cited by Adair J. at para. 51 of Hadley Estate (Re) for the following principles:
- The determination of whether to exercise the court’s curative power with respect to a non-compliant document is inevitably and intensely fact-sensitive.
- Two principal issues for consideration emerge:
- The first is an obvious threshold issue: is the document authentic?
- The second, and core, issue is whether the non-compliant document represents the deceased’s testamentary intentions.
- Testamentary intention means much more than the expression of how a person would like his or her property to be disposed of after death. The key question is whether the document records a deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death.
- A deliberate or fixed and final intention is not the equivalent of an irrevocable intention, given that a will, by its nature, is revocable until the death of its maker. Rather, the intention must be fixed and final at the material time, which will vary depending on the circumstances.
- The burden of proof that a non-compliant document embodies the deceased’s testamentary intentions is a balance of probabilities. A wide range of factors may be relevant to establishing their existence in a particular case. Although context specific, these factors may include the presence of the deceased’s signature, the deceased’s handwriting, witness signatures, revocation of previous wills, funeral arrangements, specific bequests and the title of the document.
- While imperfect or even non-compliance with formal testamentary requirements may be overcome by application of the 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.
Adair J. also confirmed that extrinsic evidence is admissible when considering whether a document is a valid will and whether the deceased had testamentary intent: Yaremkewich Estate (Re), 2015 BCSC 1124 at paras. 31 – 32.
Key factors in the analysis
Adair J. found on a balance of probabilities that the 2014 journal entry, while authentic, did not represent a deliberate and final expression of Ms. Hadley’s testamentary intentions. Particular weight was placed on the following factors (at para. 60):
- Ms. Hadley did not disclose the existence of the 2014 journal entry to anyone.
- After making the journal entry, she took steps to make an appointment with a lawyer in respect of changing her 2008 will. Ms. Hadley also communicated to a representative from Canada Trust that she wished to make changes to her 2008 will. She did not say anything to either of them to the effect that she had already made a new will.
- Ms. Hadley’s notes on the original and copy of the 2014 letter from Canada Trust, which express a desire to make a new will, are inconsistent with the 2014 journal entry representing her testamentary intentions.
- Ms. Hadley knew what was involved in making new a will, and she expected to communicate the changes she wanted to make to a lawyer, who would prepare a new will for her. The changes (unlike the contents of the journal) were not going to be kept secret. For Ms. Hadley, the contents of the journal were quite different from a will. They were notes only to herself.
Adair J. concluded that the 2014 journal entry did not have testamentary status and the deficiencies as to form could not be cured under s. 58 of WESA.
Final word on using WESA to cure deficiencies in a document purporting to be a will
The s. 58 analysis asks whether the court is satisfied that a document is authentic and records the testator’s deliberate or fixed and final expression of intention as to the disposal of her property upon death. The central concern when determining the deceased’s testamentary intent is the finality of her decision. When the document only amounts to instructions to create a will, or the document is not completed, or there is some other circumstance that negates the finality of the document, then that document does not represent its creator’s testamentary intent, and s. 58 of WESA cannot be applied to cure non-compliance with testamentary formalities.