Ms. P, executed a short will on August 18, 1988 appointing a trust company and her cousin as executor and trustee. The cousin was also the sole residual beneficiary of her estate, but passed well before Ms. P. After Ms. P’s death, a copy of the 1988 will as found and it was marked up with handwritten alterations and initials. The handwritten changes deleted the appointment of the cousin and trust company as executors and trustees and deleted the gift of the residue of the estate to said cousin. The handwriting appointed Mr. H, another cousin to be the executor and left him the residue of the estate.
Mr. H applied for probate and Ms. P’s nephews filed a notice of dispute. Mr. H applied to the court for an order under s. 58 of Wills, Estates and Succession Act, S.B.C. 2009, c. 13 (“WESA“) for a declaration that the handwritten changes on the will represent Ms. P’s wishes and that the alternations should be given effect as the will, even though the alterations did not meet the requirements to be valid under WESA.
S. 58 of WESA is relatively new legislation and was most recently considered in Estate of Young, 2015 BCSC 182, where Madam Justice Dickson considered s. 58 in light of Manitoba’s similarly worded curative provisions and recent case law. Madam Justice Dickson in Young held that the court’s power to cure non-compliant wills is inevitably and intensely fact sensitive. The first consideration is whether the document and secondly whether the non-compliant document (including markings) represents the deceased’s testamentary intentions on the balance of probabilities. Factorsn that are relevant to such an inquiry include the presence of the deceased’s signature, the deceased’s handwriting, witness signatures, revocation of previous wills, funeral arrangements, specific bequests and the title of the document : Sawatzky at para. 21; Kuszak at para. 7; Martineau at para. 21.
Both Ms. P’s nephews and Mr. H provided affidavit evidence to the court regarding the handwritten alterations. Mr. Justice Kent did not find the evidence helpful to determining testamentary intentions. He noted Rule 22-1(4) of the Supreme Court Civil Rules, which provides that the court may order the attendance of those who swore an affidavit for cross examination on their evidence. He also noted that lack of any evidence respecting Ms. O’s physical and mental health at the time the changes to the will were made.
Mr. Justice Kent found that there was a bona fide triable issue between the parties as to whether the handwritten alterations were Ms. P’s fixed and final intentions and that the issue could not be determined based on the affidavit evidence filed. He noted Supreme Court Rule 2201(7)(d) permits the court to order a trial of any chambers proceeding and to give directions respecting the filing of pleadings and the further conduct of the matter. The test is whether there is a bona fide issue on the evidence which warrants determination for trial. Ultimately, the matter was ordered to proceed to a trial.