How Does a Judge Decide a Document that is Not Formal Will Expresses the Deceased’s Testamentary Intention?
In my last blog, I noted that British Columbia’s new Wills and Estates Succession Act (“WESA”), that came into effect in 2014, finally introduced a far reaching “curative” provision (section 58) that allows a Judge to consider whether a document, record, or writing or marking on a will or document represents a deceased person’s true testamentary intentions. How does a Judge decide whether or not it does?
This legal question depends greatly on the unique facts of each case. The court is expected to be open-minded and liberal when considering evidence for a section 58 application under section 58 of WESA. There are a number of factors that a court may consider when determining whether the document(s) at issue represents the deceased’s intentions for his or her estate, including but not limited to:
• the form and content of the record or document;
• the circumstances around the making of the document
• where the record or document was stored
• the sophistication of the deceased
• whether he or she had knowledge of the formalities of will-making
• whether or not steps were taken to “adopt” the will
• whether he or she made others aware of the existence of the document or record
• the consequences of not declaring the document or record to have testamentary effect.
After considering all evidence put forward in a case, the court will make an order that a record or document or writing or marking on a will or document is or is not fully effective. If it is determined to be fully effective, the court will then order that it represents a will or part of a will or that it replaces, alters or revives the will or in some other way represents the testamentary intention of the deceased.