CURING DEFICIENT WILLS: RECENT UPDATES TO BC LAW

Historically, the law in British Columbia required all wills to be:

• In writing;
• Signed at the end by the will-maker, in the presence of two or more witnesses present at the same time; and
• Signed by two or more witnesses in the presence of the will maker. 

Wills that failed to comply with the above “formalities” were declared invalid by the court and unenforceable as a testamentary document. This often led to unfair results.

In response to this unfairness the British Columbia Wills, Estates and Succession Act, SBC 2009, c. 13 (“WESA”), which came into force on March 31, 2014, brought with it a number of changes to estate law in British Columbia. One such change was the introduction of s. 58, a curative provision that gave the court power to “cure” documents that failed to comply with the strict “formalities” of a properly executed will. In cases where the “testamentary intentions” of the deceased person are clearly set out in a document, s. 58 allows a court to excuse non-compliance with the “formalities”, which are now codified in s. 37 of WESA.

Since WESA was first introduced into law, the court’s interpretation of s. 58 has continued to develop as new facts come before it for determination. In the recent British Columbia Supreme Court case Akins Estate (Re), 2019 BCSC 738 (“Akins”), Zacharias’ own Brian Vickers appeared on behalf of the applicant on an appeal from the decision of a master who declined to cure a formally defective will. The appeal was heard by Mr. Justice Sewell, who in turn provided important clarification to s. 58 and its application to wills in the post-WESA legal landscape.

At issue in Akins was the testamentary validity of a document found by the family of Kevin Akins, deceased, which was stored away in a safety deposit box and entitled “Wishes on My Passing” (the “Note”). The one-page Note, which was hand-written and signed by Mr. Akins, contained various gifts of property which were to be distributed upon his passing. The Note, although “will-like” in form, was not signed in the presence of two witnesses and therefore did not comply with s. 37 of WESA. The family of Mr. Akin applied to the court to have the Note cured of its formal deficiencies and declared a valid will pursuant to s. 58.

At the hearing, the master declined cure the deficiencies in the will on the basis that the applicant failed to show any unusual or exceptional circumstances to explain why Mr. Akin failed to comply with the “formalities” of a valid will. In the absence of unusual or exceptional circumstances, the master dismissed the application before him. 

On appeal Mr. Justice Sewell reflected on the purpose of s. 58, which was to grant discretion to the court to prevent a testator’s testamentary intentions from becoming frustrated when the formal requirements for executing a will are not strictly followed, but the testator’s “fixed and final” intention to dispose of his or her property are clearly present. In exercising its discretion, Mr. Justice Sewell held that s. 58 is remedial and that the court must construe the rule liberally. In his view, the master’s qualification that the circumstances surrounding the creation of the Note must have been unusual or exceptional so as to explain why Mr. Akin failed to comply with the formal requirements for executing a will was incompatible with the purpose and intent of the rule. In no way does s. 58 require the court to ask why a deceased person failed to make a formally valid will. It only requires that the document be: (1) authentic; and (2) reflect the deceased person’s “fixed a final” expression of intention to dispose of property.

Mr. Justice Sewell examined the evidence and found that the Note clearly met the requirements of s. 58. The authenticity of Mr. Akin’s Note was not in doubt, nor were there any reasons to conclude that the Note was drafted under duress. In turning to whether the deceased’s letter evinced his “fixed and final” expression of intention to dispose of his property, Mr. Justice Sewell highlighted the following factors as important to his decision:

[28]        In this case, I have no difficulty in finding that the document was created by the deceased and signed by him and is therefore authoritative. The deceased clearly set out the manner in which not only his estate should be distributed, but also the arrangements which should be made with respect to the disposal of his remains. The deceased also took the step of placing the document in his safety deposit box. I take this to be an indication that he considered this to be an important document which would come to light on his death.

Based on the evidence before him, Mr. Justice Sewell was satisfied that the Note properly set out Mr. Akin’s “fixed and final” expression of intention to dispose of his property and that s. 58 should be used to “cure” the deficiencies in the Note. The appeal was allowed, and the master’s decision was overturned.

Akins clarifies the law with respect to s. 58 by rejecting the notion that special or unusual circumstances must be present to explain why the deceased person failed to comply with the “formalities” of a properly executed will. This is a welcomed clarification to the law, especially from an evidentiary standpoint as showing the existence of special or unusual circumstances long after the deceased has passed away could be difficult, if not impossible to prove.

This is provided as information only. It should not be construed as legal advice. You should consult with a lawyer to provide you with specific advice for your own situation. For more information on estate disputes and to discuss your specific circumstances, please contact Zacharias today. Our estate litigation lawyers at Zacharias have experience bringing forward these types of applications and are here to provide you with a knowledgeable and objective opinion with respect to your claim.