Can my last e-mail be my will?
That was a question being asked (mainly by lawyers, admittedly) after the Wills Estates and Succession Act (the “WESA”) came into force last March 30th, 2014. Lawyers ask some pretty wacky questions, but this one wasn’t so far-fetched. It stemmed from a new provision in the WESA, Section 58.
Section 58 says that a court may make an order if it determines that a record, document or writing or marking on a will or document represents the testamentary intentions of a deceased person.
The definition of “record” includes data that is recorded or stored electronically, can be read by a person, and is capable of reproduction in a visible form.
So, can my last e-mail be my will? S. 58 seems to say it could.
The question recently came before the Supreme Court in BC. In that case, Estate of Sharone Young, a lady who died in 2014 had made a will, but had also written a number of other documents stating what she wanted done with some of her things after her death. None of these documents were signed the way a will needs to be signed. The executor decided she had better ask the court whether these writings were actually a “will”, and therefore represented the deceased’s testamentary intentions.
Here is what the judge said:
“… Two principal issues for consideration emerge from the … authorities. … is the document authentic? The second, and core, issue is whether the non-compliant document represents the deceased’s testamentary intentions.
In George [a Manitoba case] the court confirmed that 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.
…….. While imperfect or even non-compliance with formal testamentary requirements may be overcome by application of a sufficiently broad 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.”
In other words, the more the document looks like an email and the less it looks like a formal will, the less likely a court would consider it the deceased’s “fixed and final” testamentary intentions.
This is good news for those of us who might have been wondering what documents need to be given to the court when applying for probate, and whether all of grandma’s musings and notes that she wrote all over the copy of her last will might actually be her last will. And that email she wrote to you the evening before she died? The one where she says your brother was always her favourite and he should get everything? You can safely ignore it.