Where There Isn't A Will, There May Be A Way: Curing Deficiencies And Rectification

Introduction

In 2003, the British Columbia Law Institute ("BCLI") began the Succession Law Reform Project with the goal of consolidating and modernizing succession law. The modernization aspect was particularly important because much of the law in this area was archaic and sometimes embodied in conflicting case law. In pursuit of that goal and after much consultation, BCLI published a paper in June 2006 that highlighted potential areas for change and included a draft form of the new legislation1 (the "BCLI Paper"). The Wills, Estates and Succession Act ("WESA") was subsequently passed in the legislature and received royal assent in 2009. Some 11 years after the Succession Law Reform Project began, WESA came into force on March 31, 2014.

WESA implements a variety of changes. The addition of sections 58 and 59 are among the most significant. Section 58 permits the court to order that a record, document, writing, or marking on a will or document is fully effective as a will (or is a valid revocation, alteration, or revival of a will), even if the formal requirements for the execution of a will have not been met. Section 59 permits the court to rectify a will if it fails to carry out the will-maker's intentions. Consistent with the objective of modernizing succession law, these sections will help ensure that technical errors do not necessarily thwart the testamentary intentions of the will-maker.

As a lawyer, some of the questions that immediately come to mind are:

How will these sections operate in practice? How will these sections change the way I will advise my clients? Will there be an increase in the amount of litigation as a result of these sections? This article endeavours to answer these questions and to serve as a reference for lawyers that will be working with these sections for the first time. We will discuss each section in turn, providing an overview of the potentially applicable case law and our opinion on how these sections will be interpreted and applied by British Columbia courts.

Section 58

The formal requirements for the execution of a will are well known. A valid will must be in writing, signed at the end by the will-maker (or the will-maker must acknowledge the signature) in the presence of two witnesses at the same time, and signed by two or more witnesses in the presence of the will-maker. Before WESA became law, these requirements were absolute, sometimes operating to produce results that were clearly contrary to the testamentary intentions of the will-maker. These examples, from Ontario and Alberta respectively, demonstrate the difficulty with overly strict application of the formal requirements:

Brown Estate2 - the will-maker's will was declared invalid because, although...