If you discover what appears to be multiple wills or a will and a codicil or you simply don’t know whether a document left by a testator constitutes a will, then give Vancouver Estate Lawyers a call. There is a curative provision under s. 58 of the Wills, Estates and Succession Act that may be applicable to your case.
In a recent decision, Mace Estate (Re), 2018 BCSC 1284, the court ruled that what the executrix of the Estate referred to as the “Second Will” was in fact a codicil to the First Will.
In this decision, the executrix of the Estate brought a Notice of Application seeking a number of court orders. Most notably, the court was tasked with determining whether the Second Will (the “2014 Document”) represented the deceased’s sole testamentary intentions or whether the Second Will was a codicil to the First Will.
In order for a will to be valid, it needs to comply with section 37(1) of the Wills, Estates and Succession Act [SBC 2009] Chapter 13, which reads:
How to make a valid will
37 (1) To be valid, a will must be
(a) in writing,
(b) signed at its end by the will-maker, or the signature at the end must be acknowledged by the will-maker as his or hers, in the presence of 2 or more witnesses present at the same time, and
(c) signed by 2 or more of the witnesses in the presence of the will-maker.
(2) A will that does not comply with subsection (1) is invalid unless
(a) the court orders it to be effective as a will under section 58 [court order curing deficiencies],
(b) it is a will recognized as valid under section 80 [validity of wills made in accordance with other laws], or
(c)it is valid under another provision of this Act.
The court found that the 2014 Document did not comply with s. 37(1). However, s. 58 of WESA confers a broad discretion on the court to relieve against the consequences of non-compliance with testamentary formalities.
Section 58 reads:
Court order curing deficiencies
58 (1) In this section, “record” includes data that
(a) is recorded or stored electronically,
(b) can be read by a person, and
(c) 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
(a) the testamentary intentions of a deceased person,
(b) the intention of a deceased person to revoke, alter or revive a will or testamentary disposition of the deceased person, or
(c) 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
(a) as the will or part of the will of the deceased person,
(b) as a revocation, alteration or revival of a will of the deceased person, or
(c) 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.
For the court to grant an order under s. 58 of WESA, the court must be satisfied that a document represents the testamentary intentions of the deceased. Regardless of its form, if the court grants an order under s. 58(3), the document may be admitted to probate.
It is worth mentioning that the court’s curative power under s. 58 is also fact-dependent. The court needs to address two key issues: “is the document authentic? The second, and core, issue is whether the non-compliant document represents the deceased’s testamentary intentions.” The testator’s intention must be fixed and final at the material time, which will vary depending on the circumstances. More often than not, the material time for determining the testator’s intentions is the time when the document was created.
The court ruled that the 2014 was authentic and it embodied the deceased’s testamentary intentions. The deceased took care in setting out her main assets and turned her mind to the circumstances when she made the First Will. The court also relied on the Welburn Estate (Re),  A.J. No. 495 decision, which stated that:
The mere fact of making a subsequent testamentary paper does not work a total revocation of a prior one, unless the latter expressly, or in effect, revokes the former, or the two be incapable of standing together … And if a subsequent testamentary paper be partly inconsistent with one of an earlier date, then such latter instrument will revoke the former, as to those parts only, where they are inconsistent.
Further, the 2014 document did not contain the disposition of residue. The documents were kept together in the same envelop, the deceased did not revoke all her previous wills and codicils in the 2014 document, nor did she dispose of all her assets in the 2014 Document. Therefore, the 2014 document was a codicil.
If you need help navigating the estate world, then don’t fret, Vancouver Estate Lawyers are here to help. Call us to schedule your $50 case evaluation.