WESA Section 58:
I Found a Document but it is not a “Legal” Will – Should it be honored as the Deceased’s Will or Testamentary Intention?
In 2014, a new Wills and Estates Succession Act, often referred to as WESA, came into effect in British Columbia (“BC”). Before this new Act came into effect, a person leaving an estate in BC needed to ensure that a will met certain strict formalities or that will would be declared invalid and the person would be considered to have died intestacy. One of the most significant changes to estate law in BC under the new Act addressed this issue that too often resulted in a person’s testamentary intentions getting displaced. In BC, there is now a far reaching “curative” provision for wills that enables a person’s intentions for his or her estate to survive and be honored even if those intentions were not expressed in “perfect” legal form.
Section 58 of WESA provides an opportunity for a beneficiary or potential beneficiary to apply to the court for a declaration that a record, document, or writing or marking on a will or document, represents the testamentary intention of the deceased. Types of documents that may be create, alter, replace or revive a will include:
• a homemade will;
• a holograph will (a handwritten will that may or may not be written on paper);
• instructions given to a lawyer for a will that was not finalized before the death of the will maker;
• miscellaneous documents or electronic records, including but not limited to suicide notes, diary notes, etc.;
• a professionally drafted will that has since been marked up by the will maker;
• a professionally drafted will that is in some way “defective” thus does not meet all specified formalities.
It is important to note that executors cannot agree to change or create a will from “imperfect” documents or records without a court order. Further, if an executor becomes aware of additional documents that suggest the deceased may have intended to change their will, they have a duty to address those records and possibly bring them to the attention of the court before obtaining probate.
If you are an executor or a beneficiary of an estate and have come across documents or records, including electronic records, that seem to provide insight into a deceased’s true intentions and desires for their estate, whether or not a formal will currently exists, it is highly recommended that you speak to a lawyer.
Melanie Magnusson is one of our lawyer’s at Hart Legal who specializes in Estate law. If you wish to contact her for a consultation contact our office at 778-328-2828, ext.304.