Where There’s a Will, There’s a Way

Mis­takes in a will can be cured with the lat­est leg­is­la­tion

BC Business Magazine - - Alexander Holburn Beaudin + Lang Llp -

Un­til re­cently—as many ex­ecu­tors can at­test—a will in­tended to ben­e­fit fam­ily and friends could be deemed in­valid if the for­mal re­quire­ments for its ex­e­cu­tion weren’t fol­lowed to the let­ter.

But Judy Rost, part­ner with Alexan­der Hol­burn Beaudin + Lang LLP, points out that a pro­vi­sion of the Wills, Es­tates and Suc­ces­sion Act ( WESA) now gives the court dis­cre­tion to over­look some of th­ese for­mal re­quire­ments.

She ex­plains: “Sec­tion 58 is a re­me­dial, cu­ra­tive pro­vi­sion that al­lows the court to hon­our the will-maker’s in­ten­tion, as long as the de­ceased’s doc­u­ment is de­ter­mined to be au­then­tic and truly rep­re­sents his or her tes­ta­men­tary in­ten­tions.”

Aubrie Girou, as­so­ciate at Alexan­der Hol­burn, adds: “The use of sec­tion 58 will only be avail­able in cir­cum­stances where is­sues of sub­stan­tive va­lid­ity— such as lack of ca­pac­ity or un­due in­flu­ence—do not arise.”

To be “for­mally valid” wills must be set forth in writ­ing, signed by the will-maker in the pres­ence of two wit­nesses at the same time, and signed by two or more wit­nesses in the pres­ence of the will-maker and each other.

Cases of wills be­ing re­jected due to strict ap­pli­ca­tion of the re­quire­ments were not un­com­mon, in­clud­ing a sit­u­a­tion in which two wit­nesses signed a will in the will-maker’s pres­ence but not in the pres­ence of each other.

For­tu­nately, both Rost and Girou can now cite ex­am­ples of well-mean­ing will-makers who ben­e­fit­ted from Sec­tion 58 of WESA, which was en­acted in 2014. “The Young Es­tate case in­volved the de­ceased leav­ing two doc­u­ments on her din­ing room ta­ble, one of which was signed and dated and set out spe­cific be­quests, used lan­guage that con­veyed an air of fi­nal­ity, and a copy was shared with a neigh­bour for safe­keep­ing,” says Girou.

“The court de­cided that doc­u­ment was a le­git­i­mate part of her will and could be ad­mit­ted to pro­bate.”

But Sec­tion 58 hardly means ev­ery doc­u­ment will be treated as a valid will. In the Hadley Es­tate case, a hand­writ­ten en­try in a jour­nal ti­tled “This is my Last Will” was made af­ter the will-maker suf­fered a sig­nif­i­cant health episode and be­fore she met with her trust of­fi­cer and lawyer to dis­cuss for­mu­lat­ing a new will. Ac­cord­ing to Rost, the court found that the will-maker “made the en­try in a ‘con­fused’ state, re­moved pre­vi­ously-named ben­e­fi­cia­ries with­out ex­pla­na­tion, and—im­por­tantly—did not dis­close the ex­is­tence of the en­try to any­one despite later com­mu­ni­cat­ing her wishes to make a new will and tak­ing steps to do so. Ul­ti­mately, the en­try was deemed in­valid.”

Many other cases demon­strat­ing the use­ful­ness of Sec­tion 58 are com­ing to light, but Girou stresses that at the end of the day, “cre­at­ing a will that is not de­fec­tive in the first place re­mains the best op­tion for en­sur­ing that your tes­ta­men­tary in­ten­tions are fol­lowed on your death. As for ex­ecu­tors, they need to ex­er­cise due dili­gence in search­ing through the de­ceased’s pos­ses­sions and doc­u­ments—and if any ques­tion­able ma­te­rial is lo­cated, get le­gal ad­vice. We’re here to help.”

Aubrie Girou (left) and Judy Rost say that a will that is on its face de­fec­tive, may still be en­forced

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