Curing Deficiencies in a Will with WESA – Part 1

The adoption of the Wills Estates and Succession Act (“WESA”) has provided Estate Litigation lawyers with many new and interesting tools to use when assisting their clients with estate issues. One of the more interesting aspects of WESA is the power of the is section 58 which permits an application to seek an Order from the Court curing a deficiency in a will or to have the Court determine whether a written document that does not conform to the requirements of a will should be considered to be binding and representative of testamentary intent.

 

In the decision of Skopyk Estate, 2017 BCSC 2335, the Honourable Madame Justice Forth was asked to determine whether an unsigned written document from the Deceased was sufficient to represent his intentions to replace or alter a valid will drafted in 1995. In considering whether  the document evinced sufficient testamentary intent, the Court set out the test in determining an application under s. 58 as follows:

 

[18]         Section 58 of WESA authorizes the court to order that a document that does not comply with the requirements of WESA be fully effective as though it had been made in compliance with those requirements. To make such an order, the court must be satisfied that the document represents the testamentary intentions of the deceased.

 

[19]         The Court of Appeal has interpreted s. 58 to require that the document must be “a deliberate or fixed and final expression of intention” as to the disposal of property upon death: see Hadley Estate (Re), 2017 BCCA 311 at para. 36 [Hadley]. The factors relevant to the determination of whether a document represents such an expression of intention are context specific: Re Lane Estate, 2015 BCSC 2162 at para. 33. Extrinsic   evidence of testamentary intent is admissible on the inquiry as to whether a non-compliant document embodies a deceased’s intent. This may well include extrinsic evidence of events that occurred before, when and after the document was created: Hadley, at para. 40.

 

In part 2 of this blog series, will examine the ruling of the Court.

 

Vancouver Estate Litigation Lawyers

If you are involved in Estate Litigation or believe that you have been unfairly left out of a will, contact the Kushner Law Group today to schedule a consultation.

 

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