Canada: Dispensing Power Of The Court Under WESA

The Wills, Estates and Succession Act ("WESA") is now in force, and we are beginning to see its application in our estate practice. One of the most interesting new provisions is the dispensing provision in section 58.

Section 58 permits the court to order that a record, document, writing, or marking on a will or document is fully effective as a will (or is a valid revocation, alteration, or revival of a will), even if the formal requirements for the execution of a will have not been met. This is a significant change to the previous regime, which required compliance with the technical requirements of the legislation in order for a will to be valid. However, this new section is consistent with WESA's overall objective of seeking to give effect to the intentions of the will–maker.

Formal Requirements

The formal requirements for the execution of a will are that it must be in writing, signed at the end by the will–maker (or the will–maker must acknowledge the signature) in the presence of two witnesses at the same time, and signed by two or more witnesses in the presence of the will–maker and each other. Before WESA became law, these requirements were absolute, and the courts were unable to waive them. Two examples, from Ontario and Alberta respectively, demonstrate the difficulty with overly strict application of the formal requirements:

• Brown Estate – the will–maker's will was declared invalid because, although two witnesses signed the will in the presence of the will–maker, the witnesses were not present at the same time.
• Wozciechowiecz Estate – the will–maker's will was declared invalid because, although the witnesses were in the same room as the will–maker when they signed the will, the will–maker had his face turned away from the witnesses when they signed. The witnesses did not, therefore, sign "in the presence of" the will–maker.

Section 58 of WESA

With the introduction of section 58 of WESA, technical errors such as those highlighted above will not necessarily frustrate the will–maker's intentions. Yet, the scope of section 58 is even broader than that. Section 58 of WESA reads:

Court order curing deficiencies

58 (1) In this section, "record" includes data that

(2) On application, the court may make an order under subsection (3) if the court determines that a record, document or writing or marking on a will or document represents

(3) Even though the making, revocation, alteration or revival of a will does not comply with this Act, the court may, as the circumstances require, order that a record or document or writing or marking on a will or document be fully effective as though it had been made

(4) If an alteration to a will makes a word or provision illegible and the court is satisfied that the alteration was not made in accordance with this Act, the court may reinstate the original word or provision if there is evidence to establish what the original word or provision was.

Interestingly, the definition of "record" includes data that is stored electronically. This may be important when determining how the courts will interpret section 58, as it indicates that a document that does not comply with any of the formalities may be fully effective as a will. It also reflects today's extensive use of electronic devices. In Ohio, for example, a will written on a Samsung Galaxy tablet was accepted by the court as a valid will. Given the wording of our legislation, we could expect a similar ruling here.

Drawing on Other Jurisdictions

British Columbia is not the first to move away from strict compliance with formal requirements of execution of a will. The Manitoba legislation in particular is quite similar, and thus the Manitoba case law is likely to be of assistance to British Columbian courts when interpreting section 58 of WESA.

The leading case on interpreting the Manitoba dispensing provision is the Court of Appeal decision in George v. Daily ("George "). There, the deceased told his accountant that he wished to change his will to benefit certain charities rather than his children. The accountant communicated those instructions to the deceased's lawyer in writing. The deceased then met with his lawyer and confirmed those instructions. The lawyer required the deceased to be assessed by his doctor before the will was executed. Unfortunately, the deceased did not obtain the assessment, and died before a new will was executed.

The court was asked to find that the accountant's letter to the lawyer was a valid will. The court considered the evidence, and held that the letter was valid as the deceased's will. The deceased's children appealed from that judgment.

The Manitoba Court of Appeal provided a lengthy and detailed analysis of the reasons underlying the formal requirements, and those underlying the legislation permitting courts to dispense with the formal requirements. It found that the critical question is whether the document expresses "a deliberate or fixed and final expression of intention as to the disposal of [the deceased's] property on death".

In this case, the Manitoba Court of Appeal held that, on these facts, the accountant's letter could not be found to be the deliberate or fixed and final expression of intention as to the disposal of the deceased's property on death. It dismissed the appeal.

Practical Matters

Now that WESA (and in particular, section 58) is in force, there are additional considerations for estate planning and administration. In particular:

• It is more important than ever to preserve informal documents created prior to finalizing a will, especially if the potential will–maker is in poor health. This would include notes from the initial meeting(s) with the will–maker when preparing a will. A signature on such a document may be the determining factor in having it declared valid as a will.
• Making handwritten notes of potential changes on a will is discouraged. Should the will–maker die before making a new will to give effect to those potential changes, or before clarifying that those changes are not final, it is likely that the court will be asked to determine whether the handwritten changes are effective. It is better practice to make the notes separately, and to see a lawyer or notary right away to effect changes.
• Personal representatives should be aware that the search for the last will of the deceased must now be broader, and include searching for electronic documents and papers which do not necessarily look like a will.
• Will–makers should be cautious when communicating their potential changes or testamentary wishes in email or other informal written communications. They may be providing the basis for an application under section 58 claiming the emails are in fact their will.
• On the other hand, if a client has approved a will sent by email, but may not be able to sign it for some time, the lawyer may ask the client to put in writing that if they die before signing it, they want this to be considered to be their last will. This communication should constitute persuasive evidence on a section 58 application should it happen to be required.
• Updating and republishing wills on a regular basis should be encouraged, even where no changes are required. Formally executing a will overrides all informal documents and notes made before that time and therefore reduces the burden on the executor to look for documents that might be deemed to be a will.

As you see, the introduction of section 58 of WESA is a significant but not radical change. A review of the case law from other jurisdictions indicates that courts have been cognizant of the objective of this section: to ensure that the will–maker's intentions are fulfilled. We expect that the British Columbia courts will apply section 58 in a similar manner.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.