Curing Deficiencies in Wills With WESA – Part 2

In part 1 of this blog series, we began discussing the case of Skopyk Estate, 2017 BCSC 2335 where the British Columbia Supreme Court was asked to consider an application under s. 58 of the Wills Estates and Succession Act (“WESA”) to determine if an unsigned handwritten document of the Deceased had sufficient testamentary intent to revoke or alter a 1995 will.

 

After setting out the test, the Honourable Madame Justice Forth concluded that there were several relevant details that supported a finding that the document (although unsigned and not-witnessed) represented sufficient testamentary intent:

 

[22]         There are several relevant details pertaining to the Document itself that support a finding that it represents such an expression of intention:

 

  1. The Document was pinned to a bulletin board hanging on the door in the Deceased’s  apartment where it could be easily found;

 

  1. The distribution set out in the Document is rational on its face in that the Deceased’s  sister, Mary Anne, who had been included in the 1995 Will, had since died;

 

  1. The Document clearly directs a division of the residue of the estate to certain named persons and in certain specific shares, with language that mirrors the language of the 1995 Will;

 

  1. Although the Document is not signed or witnessed, the word “witness” is written near the bottom;

 

  1. Although the Document is not dated, there is reference at the top to the Deceased’s will dated November 16, 1995. It also purports to correct a typographical error in a specific paragraph of the 1995 Will; and

 

  1. The handwriting is reasonably similar to handwriting in a letter entered into evidence, which is dated December 10, 1995, and signed by the Deceased. This letter was found in a drawer in the Deceased’s apartment next to the 1995 Will.

 

The Court also considered extrinsic evidence such as that the Deceased had told a beneficiary prior to entering heart surgery that he was working on his will and that his 1995 will did not reflect his desires.

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