In, Re Hadley Estate, 2017 BCCA 311, the BC Court of Appeal had the first opportunity to judicially consider s. 58 of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13. S. 58 of WESA allows the court to “cure” a record, document or marking on a will to make it fully effective as the deceased’s testamentary intentions, even though the record, documents or marking may not have complied with the formal testamentary requirements.
Hadley Estate involved questions as to whether an entry in the personal journal of a 93-year-old woman represented the deliberate and final expression of the deceased’s testamentary intentions. The appellants argued that the trial judge erred by relying on extrinsic evidence in reaching the conclusion that the personal journal entry did not represent the deliberate and final expression of the deceased’s intention. The trial judge refused to find the deceased’s journal entry fully effective as a valid will or an alteration of a will.
Prior to WESA, s. 4 of the Wills Act, R.S.B.C. 1996, c. 489, required that testators comply strictly with execution and attestation formalities for creating, revoking or altering a will for it to be valid. The insistence on strict formalities often led to the deceased’s intentions being frustrated for trivial reasons. The curative powers granted to the court under s. 58 were recommended as part of the reforms championed by the British Columbia Law Institute as part of a general reform of wills and estate administration law. Although S. 58 cannot be used to uphold a will that is substantially invalid, it permits the court to cure issues of formal invalidity. For an order to be granted under s. 58 of the WESA, the court must be satisfied that a document represents the testamentary intentions of the deceased person. Manitoba had adopted similar curative provision under their Wills Act, and the leading Manitoba authority has been cited by the BC Supreme Court in interpreting s.58 of WESA: see Estate of Young, 2015 BCSC 182.
How to determine intention and with what evidence?
In determining what were the testamentary intentions of the deceased, the court of appeal in Hadley was tasked with determining what material time the intention should be determine and what evidence could be admitted in support. The court held that the general rule is that the material time for determining testamentary intentions on a s. 58 application is the time when the document in question was created. However, the court noted that the material time may vary on this key issue.
As noted by the court, s.58 does not explicitly indicate what evidence is admissible and consequently the ordinary rules of admissibility apply in that evidence must be relevant to a live issue and not be subject to exclusion under any other rule of law or policy to be admissible. This can be even more challenging in estate matters because the only person best able to speak to their own intentions is deceased. As stated by Madam Justice Dickson at para 40,
“The task is inherently challenging because the person best able to speak to these intentions – the deceased – is not available to testify. In addition, by their nature, the sorts of documents being assessed will likely not have been created with legal assistance. Given this context and subject to the ordinary rules of evidence, the court will benefit from learning as much as possible about all that could illuminate the deceased’s state of mind, understanding and intention regarding the document. Accordingly, extrinsic evidence of testamentary intent is admissible on the inquiry: Langseth Estate v. Gardiner(1990), 75 D.L.R. (4th) 25 at 33 (Man. C.A.); Yaremkewich Estate (Re) at para. 32; George. As is apparent from the case authorities, this may well include extrinsic evidence of events that occurred before, when and after the document was created: see, for example, Bennett; George; Estate of Young; Re MacLennan Estate (1986), 22 E.T.R. 22 at 33 (Ont. Surr. Ct.); Caule v. Brophy (1993), 50 E.T.R. 122 at paras. 37–44 (Nfld. S.C.).”
Madam Justice Dickson found that the trial judge’s reasoning revealed no palpable or overriding error and that her conclusions on Ms. Hadley’s testamentary intentions were reasonable given the evidence presented.