Where there is (not quite) a Will

Since the Wills Estate and Succession Act (the “WESA”) came into effect in March of 2014, we have waiting to see what the courts would do with the new provision, Section 58, allowing judges to decide whether a document that did not meet the formal requirements to be a will, might still qualify as a will.

Before the new act, in BC a will had to meet very strict requirements to be valid, with some really perverse consequences. Very minor errors in making the will could mean a person’s estate would be subject to an older (outdated) will, or no will at all. Other provinces had already enacted laws similar to the WESA, and gave us some idea of what might happen. But we now have some guidance from our own courts, and here is what we know so far.

The key is that the document must contain the will maker’s “fixed and final” intention that this is their will. This would typically still prevent an unsigned will, even if printed and ready for signing at the lawyer’s office, from being a valid last will. This is because it is not unusual for a client to arrive at the lawyer’s office, read through the will before signing, and make last minute changes. There would have to be some very persuasive evidence to over-come this.

What kind of evidence is needed to prove the fixed and final intention? In a recent BC case, Re Yaremkewich Estate, the judge was asked to find that an improperly signed pre-printed will and several additional hand-written documents referred to in it, formed the valid will of the deceased. The judge looked at the surrounding circumstances, such as the deceased’s diagnosis with a life-threatening illness not long before she made the will, and the amount of detail included in the documents. The judge also accepted that the information was all in the deceased’s own handwriting, and no amendments or cross-outs were found. The will and the documents were all found together in an envelope on which the deceased had written “Will of Denise Lynn Bevan Yaremkewich.”

On the facts of this case, the judge was able to find that the documents, taken together, were the valid last will and testament of Ms. Yaremkewich.

Interestingly enough, the judge found that directions relation to the deceased’s dog, Jake, including instructions for his care and descriptions of his likes and temperament, though found with the other papers, was not part of the will, because this letter did not include “testamentary intentions.” However, there was a provision in the other documents, which were found to form a valid will, leaving money to some friends for the care of Jake. In that regard, the instructions for the Jake’s care would be analogous to a “letter of wishes;” non-binding instructions which the deceased hopes the executor or others will carry out.

What we now also know about Section 58 is that each of these cases will be dealt with on their own peculiar set of facts.

About Maria Holman

I am a lawyer with over 28 years of experience in drawing up wills, trusts and estate plans, helping clients with probate and estate administrations and advising business owners and families about planning for the future. You can find me at Webster Hudson & Coombe LLP in Vancouver, BC
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