Canada: Where There Isn't A Will, There May Be A Way: Curing Deficiencies And Rectification

Last Updated: September 18 2014
Article by Mark Weintraub and Gordon Behan

Introduction

In 2003, the British Columbia Law Institute ("BCLI") began the Succession Law Reform Project with the goal of consolidating and modernizing succession law. The modernization aspect was particularly important because much of the law in this area was archaic and sometimes embodied in conflicting case law. In pursuit of that goal and after much consultation, BCLI published a paper in June 2006 that highlighted potential areas for change and included a draft form of the new legislation1 (the "BCLI Paper"). The Wills, Estates and Succession Act ("WESA") was subsequently passed in the legislature and received royal assent in 2009. Some 11 years after the Succession Law Reform Project began, WESA came into force on March 31, 2014.

WESA implements a variety of changes. The addition of sections 58 and 59 are among the most significant. 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. Section 59 permits the court to rectify a will if it fails to carry out the will-maker's intentions. Consistent with the objective of modernizing succession law, these sections will help ensure that technical errors do not necessarily thwart the testamentary intentions of the will-maker.

As a lawyer, some of the questions that immediately come to mind are:

  • How will these sections operate in practice?
  • How will these sections change the way I will advise my clients?
  • Will there be an increase in the amount of litigation as a result of these sections?

This article endeavours to answer these questions and to serve as a reference for lawyers that will be working with these sections for the first time. We will discuss each section in turn, providing an overview of the potentially applicable case law and our opinion on how these sections will be interpreted and applied by British Columbia courts.

Section 58

The formal requirements for the execution of a will are well known. A valid will 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. Before WESA became law, these requirements were absolute, sometimes operating to produce results that were clearly contrary to the testamentary intentions of the will-maker. These examples, from Ontario and Alberta respectively, demonstrate the difficulty with overly strict application of the formal requirements:

  • Brown Estate2 - the will-maker's will was declared invalid because, although two witnesses signed the will in the presence of the will-maker, the will-maker's signature was not made or acknowledged in the presence of both witnesses at the same time.
  • Wozciechowiecz Estate3 - 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.

With the introduction of section 58 of WESA, such minor technical errors 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

  1. is recorded or stored electronically,
  2. can be read by a person, and
  3. is capable of reproduction in a visible form.

(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

  1. the testamentary intentions of a deceased person,
  2. the intention of a deceased person to revoke, alter or revive a will or testamentary disposition of the deceased person, or
  3. the intention of a deceased person to revoke, alter or revive a testamentary disposition contained in a document other than a will.

(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

  1. as the will or part of the will of the deceased person,
  2. as a revocation, alteration or revival of a will of the deceased person, or
  3. as the testamentary intention of the deceased person.

(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. This is discussed in greater detail below.

There are legislative provisions similar to section 58 of WESA in other Canadian provinces and in Australia. They will be helpful in determining how British Columbia courts will interpret section 58. We will sometimes refer to these types of provisions as "dispensing provisions". The case law relating to the Manitoba provision may be particularly helpful as section 58 is based on the Manitoba provision4. In fact, the BCLI Paper contains a draft of section 58 that is remarkably similar to the Manitoba provision. Although the language of section 58 is different from the draft contained in the BCLI Paper, it remains similar to the Manitoba provision in many respects. It also bears some resemblance to the provisions in other provinces, including Saskatchewan.

Below we provide a brief overview of the case law in Manitoba and Saskatchewan. We have chosen these examples for two reasons: the leading case on the interpretation of these provisions comes from Manitoba and there is an important difference between the interpretation of these provisions in Manitoba and Saskatchewan. In Manitoba, it is not necessary for a document to comply with any of the formalities of execution to invoke the dispensing provision whereas in Saskatchewan, the courts have required some degree of compliance to invoke the provision. We will discuss the Manitoba and Saskatchewan frameworks in turn and opine on what framework the courts in our province are likely to apply.

Manitoba

The Manitoba provision reads:

23. Dispensation power

Where, upon application, if the court is satisfied that a document or any writing on a document embodies

  1. the testamentary intentions of a deceased; or
  2. the intention of a deceased to revoke, alter or revive a will of the deceased or the testamentary intentions of the deceased embodied in a document other than a will;

the court may, notwithstanding that the document or writing was not executed in compliance with any or all of the formal requirements imposed by this Act, order that the document or writing, as the case may be, be fully effective as though it had been executed in compliance with all the formal requirements imposed by this Act as the will of the deceased or as the revocation, alteration or revival of the will of the deceased or of the testamentary intention embodied in that other document, as the case may be.

The primary difference between the language of the Manitoba provision and section 58 of WESA is the inclusion of "was not executed in compliance with any or all of the formal requirements" in the Manitoba provision. Of course, the inclusion of the word "any" leads to the conclusion that a document need not meet any formal requirement to invoke the provision.

The leading case on interpreting the Manitoba dispensing provision is the Court of Appeal decision in George v. Daily5 ("George"). The Manitoba Court of Appeal ("MCA") considered whether the provision could be invoked when none of the formal requirements had been met. The deceased had advised 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 confirmed those instructions when he met with his lawyer. However, before the deceased executed his will, his lawyer required him to obtain a certificate of mental competency from his doctor. As a consequence, the deceased passed away before a will was executed. At the court of first instance, the accountant's letter of instructions to the lawyer was declared valid under the dispensing provision. The deceased's children appealed from that judgment.

The MCA used the occasion to review the purpose of the formal requirements for execution of wills and the law relating to dispensing provisions in various other jurisdictions. The MCA stated that the formal requirements for execution perform four main functions6:

  • cautionary – "impress the participants with the solemnity and legal significance";
  • evidentiary – "provide the court with reliable evidence of testamentary intent and of the terms of the will";
  • channeling – "result in a degree of uniformity in the organization, language and content of most wills"; and
  • protective – "may protect the testator from imposition or fraud".

The MCA held that the evidentiary and cautionary functions are particularly important when determining whether the document embodies the intentions of the will-maker.

The MCA then considered whether some compliance with the formalities is necessary to invoke the dispensing provision. It held that the statutory language "not executed in compliance with any or all of the formal requirements" means that no compliance with the formalities is required. Instead, 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"7.

In George, the MCA held that the requirement of knowledge and approval is not overcome by a dispensing provision. That is why the MCA stated that, with respect to third-party documents, the document would have to have been made at the request of the deceased or with his or her knowledge, and it must be intended as a deliberate and final expression of his or her wishes8. It is apparent that it is difficult to have a third-party document declared to be a will under the dispensing provision.

Ultimately, the MCA held that the accountant's letter was not a deliberate or fixed and final expression of intention as to the disposal of the deceased's property on death and dismissed the appeal.

The George decision has been cited with approval by courts in various provinces9 and represents the current state of the law in Manitoba.

While the MCA declined to hold that the accountant's letter was a will, there are various examples of the Manitoba dispensing provision being successfully invoked, including:

  • Prefontaine v. Arbuthnott10 - partially completed pretyped will form with handwritten insertions.
  • McNeil v. Snidor Estate11 – the will had only one witness, who did not see the will-maker sign the document.
  • Roelofs Estate, Re12 - writing "void" on the original and copies of the will had the effect of revoking the will.

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Footnotes

1. British Columbia Law Institute, Wills, Estates and Succession: A Modern Legal Framework (2006).

2. Brown Estate, Re, [1954] OWN 301 #2 (Ont. Surr. Ct.).

3. Wozciechowiecz Estate, Re, [1931] 4 DLR 585, 3 WWR 283 (Alta. App. Div.).

4. British Columbia Law Institute, Wills, Estates and Succession: A Modern Legal Framework (2006), at page 25.

5. George v. Daily (1997), 43 DLR (4th) 273, 15 ETR (2d) 1 (Man. CA).

6. George, supra, at para 21.

7. George, supra, at paras. 29 and 65.

8. George, supra, at para. 67.

9. See, for example, Sweeney Cunningham Estate v. Sweeney, 2013 NSSC 299; Furlotte v. McAllister, 2005 NBQB; Smith v. Smith, 2012 ABQB 677.

10. Prefontaine v. Arbuthnott, 2001 MBQB 45.

11. McNeil v. Snidor Estate, 2008 MBQB 187.

12. Roelofs Estate, Re, 2004 MBQB 280.

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.

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