Mar 10, 2020

Admitting to Probate a Document or Record That Does Not Meet the Requirements of a Will

Hubschi Estate (Re), 2019 BCSC 2040 (CanLII)

One of the most anticipated changes to B.C. estate litigation legislation was the introduction of s. 58 of the Wills, Estates and Succession Act [“WESA”], which allows the court to “cure deficiencies” in a will. This permits the court to admit to probate a document or record that does not meet the technical requirements of a will.

Prior to the passing of WESA, will-makers were required to comply strictly with certain formalities relating to the execution and attestation of a will. If these formalities were not met, the will was not valid, and the will-maker’s testamentary intentions would be defeated even if those intentions were clear.

Section 58 of WESA provides that the court may determine that a document or record (including an electronic record) represents the testamentary intentions of a deceased person, and order that it is fully effective as though it had been made as the will or part of the will of the deceased person.

For an order to be granted, the court must be satisfied that (1) the document is authentic, and (2) the document represents the deceased’s testamentary intentions. The section does not require any minimum level of execution or other formality, although the further a document departs from the formal requirements the harder it may be for the court to find it embodies the deceased’s testamentary intentions. Regardless of form, the document may be admitted to probate: a handwritten letter, unwitnessed and unsigned, an email, a text message or other instant message, a scribbled “to do” note, a draft Word document.

By way of recent example, in Bizicki Estate 2019 BCSC 2142 the court admitted three notes left by the deceased in his room stating his wish that his girlfriend receive the money in his bank accounts and other personal property. Two of the notes were undated. Two of the notes were unsigned.

In Hubschi Estate (Re) 2019 BCSC 2040, another recent court decision, the court admitted an entry found on the deceased’s home computer that read “Get a will made out at some point. A5 – way assets split for remaining brother and sisters. Greg, Annette or Trevor as executor.”

As a result, even when there is no formal will there may be a document or record which sets out the deceased’s testamentary intentions, which may be admitted for probate. It is important to conduct a careful search of a deceased’s records, including electronic records, to locate any such document.

[This post by James Zaitsoff first appeared on the BC Estate Litigation Blog on February 9, 2020]