Is A Note Or Letter Prepared Before Death Legally Valid?

• Published date: 19 June 2023
• Subject Matter: Family and Matrimonial, Wills/ Intestacy/ Estate Planning
• Law Firm: Watson Goepel LLP
• Author: Ms Janet De Vita

When a person is dying, their intensions on distributing their assets may change after their Last Will and Testament (the "Will") was prepared. When this occurs, there may not be enough time to see a lawyer to arrange to have a new Will prepared or changed. Notes, letters, or recorded data may be left behind that may change the deceased intentions contrary to their Will. We refer to this as the "Record."

The issue then becomes determining which one is valid: the Will or the Record prepared after the Will. In other words, is the Record left behind sufficient evidence to establish the testator's intention in law?

The Wills, Estate and Succession Act ("WESA") in B.C. allows the court to cure technical deficiencies in a persons' Will. Section 58 of WESA states:

58 (1) In this section, "record" includes data that

(a) is recorded or stored electronically,

(b) can be read by a person, and

(c) is capable of reproduction in a visible form.

(2) On application, the court may make an order under subsection (3) if the court determines that a record, document or writing or marking on a Will or document represents

(a) the testamentary intentions of a deceased person,

(b) the intention of a deceased person to revoke, alter or revive a Will or testamentary disposition of the deceased person, or

(c) the intention of a deceased person to revoke, alter or revive a testamentary disposition contained in a document other than a Will.

(3) Even though the making, revocation, alteration or revival of a Will does not comply with this Act, the court may, as the circumstances require, order that a record or document or writing or marking on a Will or document be fully effective as though it had been made

(a) as the Will or part of the Will of the deceased person,

(b) as a revocation, alteration or revival of a Will of the deceased person, or

(c) as the testamentary intention of the deceased person.

(4) If an alteration to a Will makes a word or provision illegible and the court is satisfied that the alteration was not made in accordance with this Act, the court may reinstate the original word or provision if there is evidence to establish what the original word or provision was.

The Use of "Records" in BC Courts

One of the first cases in B.C. to interpret section 58 of WESA was Young Estate (Re), 2015, BCSC 182. In this case, the deceased had a Will executed on March 2, 2009. After her death, two documents were found on the deceased dining room table: (1) a signed document...