WESA Section 58 – Curing Deficiencies in an Invalid Will

While it is always best for a person to record their intentions about who will inherit their property after their death with a will prepared by a lawyer or notary, many people will communicate their intentions in less formal ways. In some situations, informal documents like a handwritten will, or even an electronic will such as an email or the draft of a Word file can serve as a valid will even though they do not meet the requirements set out in the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 (“WESA”). Such documents can also serve to change an otherwise valid will. Can the same be said of a collection of handwritten notes penned at different times? In Bizicki Estate, 2019 BCSC 2142, the court found that multiple handwritten notes comprised a valid will because they articulated the deceased’s fixed and final testamentary intentions. Section 58 of WESA authorizes the court to validate a document that does not comply with the formal requirements of WESA. To do this, the court must be satisfied that the document represents the deceased’s final testamentary intentions.

The Formal Requirements of a Will

For a will to be valid and binding in British Columbia, it must meet certain legal requirements. WESA section 37(1) sets out these requirements. A valid will must be:

1. in writing;
2. signed at the end by the will-maker (or the signature at the end must be acknowledged by the will-maker as his or her own, in the presence of two or more witnesses); and
3. signed by at least two witnesses in the presence of the will-maker.

For a document to be incorporated into an otherwise complete and valid will, the document must be:

1. in existence when the will is executed; and
2. beyond doubt the document referred to in the will.

A will is invalid if it does not comply with WESA section 37(1), unless the court orders it to be valid pursuant to WESA section 58. This provision is “curative” in that the court can use it to remedy a failure to comply with the above requirements.

What if a will does not meet the formal requirements?

Before the enactment of WESA in 2014, the then-current legislation required will-makers to strictly adhere to certain formalities. These formal requirements sometimes prevented the legitimate intentions of a will-maker from being executed even when these intentions were clearly stated. WESA granted the courts the ability to prevent the consequences of non-compliance with testamentary formalities.

Section 58 of WESA gives the court broad discretion to recognize as a will – or “admit to probate” – a document that does not otherwise meet the statute’s formal requirement for creating a will. It also allows the court to incorporate a particular document into a will, thereby validating part of a will. To use the language of section 58, the court can cure the deficiencies of an otherwise invalid will. WESA section 58 ensures that formalities do not stand in the way of the final intentions of a deceased person.

Whether a court can validate a will or part of a will depends on the facts of the case. The court will decide on a balance of probabilities whether:

1. the document is authentic; and
2. the document represents the fixed and final expression of the deceased’s testamentary intentions.

Relevant factors that the court may weigh in its decision include the presence of the signature of the deceased, their handwriting, signatures of witnesses, mention or revocation of previous wills, funeral arrangements, particular bequests, and the title of the document. While no minimum level of formality exists, the further a document deviates from the formal requirements of a will, the more difficult it may be for the court to conclude that it is an accurate representation of the deceased’s testamentary intentions.

Bizicki Estate: Curing Deficiencies in a Will

In Bizicki Estate, 2019 BCSC 2142, the British Columbia Supreme Court used the discretion conferred by WESA section 58 to validate a set of documents that the deceased intended to constitute a will. The deceased, Mr. Bizicki, died without making a conventional will, instead leaving behind three notes stating what should happen to his money and personal property. The specific issue, in this case, was whether a collection of handwritten notes could constitute a valid will.

Mr. Bizicki was a lifelong bachelor who had no children. Three notes in his handwriting were found in a Vancouver hotel room that he had been living in. The first note, titled “Information”, stated that only his girlfriend could disturb his belongings after his death. He wrote this note in blue ink and the other two in black; this suggests that the notes were written at different times. The second note, titled “Executor”, stated that Mr. Bizicki’s “personal property, clothes, etc.” should go to his girlfriend. It also provided the address of Mr. and Mrs. Fred Leake, a childhood friend of Mr. Bizicki. Next to Mr. Leake’s address, the deceased penned the word, “Executor?”, adding a question mark afterwards. The third note stated that the deceased’s personal property and all the money in his bank accounts should go to his girlfriend after money had been taken out to pay for his cremation. He underlined the word “cremation”, likely to indicate his preference for cremation over burial. He dated only the “Information” note and signed only the money note.

The court first considered whether the documents were authentic, that is, whether the deceased created them. A handwriting expert confirmed that the notes were in the deceased’s handwriting. Next, the court asked whether the documents represented the fixed and final expression of the deceased’s testamentary intentions. In other words, did Mr. Bizicki intend the notes to determine how his money and property should be distributed? In considering this question, the court found that the “Information” note did not show clear intention and did not give it legal effect because the note did not address the distribution of Mr. Bizicki’s property upon his death. However, the court found in favour of the other two notes. Because the money note detailed how the deceased’s funds should be used, the language was final, and it was signed, the court determined that this money note was likely intended to be the final disposition. It was, therefore, given testamentary effect. Although Mr. Bizicki’s selection for his executor was uncertain – indicated by the question mark – and although the “Executor” note was not signed, the language in this note gifting the money and property to Mr. Bizicki’s girlfriend was firm and final. Therefore, the “Executor” note was given testamentary effect, aside from the portion indicating who the executor ought to be.

If you are named as a beneficiary in a document that you believe represents the deceased’s testamentary intentions but that does not meet the formal requirements of a will, you should consult an experienced lawyer for assistance. To contact one of our estate litigation lawyers, call McLarty Wolf at 604-687-2277 or send us an email through our online contact form.