Perhaps the most controversial provision of British Columbia’s new Wills, Estates and Succession Act coming into effect on March 31, 2014, is section 58 which will allow the Court to give effect as a will to a document, or an electronic record, that does not meet the formal criteria for a valid will in British Columbia, if the Court is satisfied that it represents the “testamentary intentions of a deceased person.” For example, the court could give effect to a document that might purport to be a last will, but might not be witnessed by two witnesses, or perhaps the deceased person might not even have signed it.
I have written about this new provision before, but for convenience, I will set out section 58 here:
Court order curing deficiencies
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.
How will the British Columbia Courts interpret this provision? The short answer is I don’t know, but for a clue, I think it worthwhile to look at court cases in other provinces that have similar legislation.
One of the leading decisions is a 1997
Manitoba Court of Appeal decision, George v.
Daily, 1997 CarswellMan 57. John Daily met with his accountant, Dale George,
and advised him that he didn’t want his children to inherit his money and he
wanted to change his will. They reviewed Mr. Daily’s will, and Mr. George wrote
notes with proposed changes on a copy of a will. Mr. George then wrote to a
lawyer, Mr. Brock Lee QC, setting out the proposed changes to the will. Mr. Lee
met with Mr. Daily on September 15, 1995, and Mr. Daily confirmed that he
wanted to make the changes. Mr. Lee asked Mr. Daily to obtain a certificate
from his physician confirming his mental competency. Mr. Daily died two months
later without having obtained a certificate from his doctor and without having
signed a new will.
The issue before the Manitoba Court of Appeal was whether the Court should give effect to the letter from Mr. George to Mr. Lee as Mr. Daily’s last will pursuant to section 23 of
Wills Act. Section 23 said:
23 Where, upon application, if the court is satisfied that a document or any writing on a document embodies
(a) the testamentary intentions of a deceased; or
(b) the intention of a deceased to revoke, alter or revive a will of the deceased or the testamentary intentions of the deceased embodied in a document other than a will;
the court may, notwithstanding that the document or writing was not executed in compliance with any or all of the formal requirements imposed by this Act, order that the document or writing, as the case may be, be fully effective as though it had been executed in compliance with all the formal requirements imposed by this Act as the will of the deceased or as the revocation, alteration or revival of the will of the deceased or of the testamentary intention embodied in that other document, as the case may be.
In his reasons for judgment, Mr. Justice Philp undertook and extensive analysis of the underlying reasons for the formal requirements in wills legislation for making valid wills, the purpose of the provision allowing a court to give effect to a non-compliant document, and the principles applied in other jurisdictions to similar legislation.
As set out by Mr. Justice Philp, the formal requirements serve three main functions:
21 Imperfect compliance, even non-compliance, with the formal requirements under the Act may be excused by the application of the dispensation power under s. 23. Nevertheless, I think it is important to take a moment to review the purposes or functions of those formalities, and to understand what has been abandoned. In Langseth, I said of them (at p. 295):
Professor Langbein identified the main purposes or functions of the formality requirements of the Wills Act as (1) the "evidentiary" and "cautionary" functions in which the requirements of writing, signature and attesting witnesses impress the participants with the solemnity and legal significance; and provide the court with reliable evidence of testamentary intent and of the terms of the will; (2) the "channelling" function, in which the formal requirements result in a degree of uniformity in the organization, language and content of most wills; and (3) the "protective" function in which the formal requirements may protect the testator from imposition or fraud.
22 It is the "evidentiary" and "cautionary" functions that are particularly relevant to the determination of whether or not a writing or document embodies the testamentary intentions of a deceased. The Commission described these functions in its 1980 report. The [Manitoba Law Reform] Commission explained (at p. 15):
A much more important function the formalities serve is the evidentiary one. Since the courts "are remote from the actual ... circumstances" [A.G. Gulliver and C.J. Tilson, Classification of Gratuitous Transfers (1941) 51 Yale L.J. 1, at 3] which claimants rely on to establish their interests, it is necessary that they be provided with sufficient evidence of the event.
Reliable and permanent evidence of intention, genuineness and clarity of terms is ensured by "The Wills Act" formalities. Writing is permanent evidence which can be presented to a court at a later date. Signature at the end assures the court of the authenticity of the whole document. The requirements as to witnesses provide the court with parties who can give evidence to prove the will. By their being disinterested, the evidence of the witnesses is not self-serving. The testator signing or acknowledging in the witnesses' presence provides evidence of intent. And attestation and subscription give verification of their role.
23 With respect to the "cautionary" function, the Commission wrote (at p. 16):
For a will to be valid it must be established that a testator intended his words to be legally operative. It must be clear that the finality and solemnity of the occasion were impressed upon the testator. This function is served by "The Wills Act" formalities. Writing is more final than oral declarations in the sense of the expression that "talk is cheap". Signature in our society is a sign of final authorization. Most people will not lightly sign a document entitled "last will and testament". All the witnessing provisions - presence, attestation and subscription - make the entire process very ceremonial, impressing upon the testator the importance of his actions.
Mr. Justice Philp considered whether any compliance was necessary, and concluded that the Manitoba Wills Act did not require any formal compliance. In principle, the document could be made by someone other than the now deceased person, and need not be signed or witnessed.
But not every expression of an intent to leave someone property may be given effect as a will. The test is whether the document records “a deliberate or fixed and final expression of intention as to the disposal of his/her property on death.”
He wrote at paragraphs 61 through 67:
61 Section 23 can be invoked to give effect to the testamentary intentions of a deceased in the face of imperfect compliance, even non-compliance, with the formalities of the Act. Section 23 cannot, however, make a will out of a document which was never intended by the deceased to have testamentary effect. In Re Balfour Estate (1990), 85 Sask. R. 183 (Q.B.), Gerein J. explained the principle:
Yet, it must be kept in mind that the section's [s. 35.1 of the Saskatchewan Wills Act] purpose is to overcome non-compliance with formal requirements. It does not empower the Court to render a document testamentary in nature when it is otherwise not so. In the instant case, the document does not manifest a true testamentary intention and therefore does not meet the threshold requirement of the section.
62 Not every expression made by a person, whether made orally or in writing, respecting the disposition of his/her property on death embodies his/her testamentary intentions. The law reports are filled with cases in which probate of holographic instruments has been refused because they did not show a present intention to dispose of property on death. Bennett v. Toronto General Trusts Corp.,  S.C.R. 392, was such a case.
63 In Bennett, the deceased's letter to her lawyer, a holographic document, contained details of "how [she] would like [her] will to be made out." Thereafter, until her death three and one-half years later, she met her lawyer on many occasions, both professionally and socially, but a formal will was never prepared. The court concluded that the letter was not written animo testandi; that it did not "record a deliberate or fixed and final expression of intention as to the disposal of property on death." The court's conclusion was supported by its findings that the deceased "did not want that letter to operate as a will;" and that "by her letter, she is committing to [her lawyer] both the finality of her decisions, if not of her deliberations, and that of the form in which they should eventually be expressed in a regular will, the preparation of which is entrusted to [her lawyer] himself."
64 In my view, in a similar fact situation today, the result would be the same, notwithstanding the enactment of s. 23. While the deceased's letter to her lawyer detailed the way in which the she would like her will to be made out, the letter did not embody her testamentary intentions. Section 23 cannot be invoked to overcome the absence of that essential requirement of a valid will.
65 The term "testamentary intention" means much more than a person's expression of how he would like his/her property to be disposed of after death. The essential quality of the term is that there must be a deliberate or fixed and final expression of intention as to the disposal of his/her property on death: Bennett; Molinary v. Winfrey (1960),  S.C.R. 91; and Canada Permanent Trust Co. v. Bowman,  S.C.R. 711.
66 In my opinion, these are the principles which must be applied in the determination under s. 23 as to whether or not a document or writing embodies the testamentary intentions of the deceased. Whether it is the deceased's own instrument or the notes or writing made by a third-party, the crucial question to be answered is whether the document expresses the animus testandi of the deceased - a deliberate or fixed and final expression of intention as to the disposal of his/her property on death.
67 At the very least, a third-party document would have to be one that had been made at the request of the deceased, or with his/her knowledge; and, in any event, with his/her awareness that the document recorded the deliberate and final expression of his/her wishes as to the disposition of his/her property on death. Another of the principles which have survived the enactment of s. 23 is that the court must be satisfied that the deceased knew and approved of the contents of the document which is presented for probate. Guardhouse v.
Blackburn(1866), L.R. 1 P. & D. 109 (Prob.), which has not been overruled by the enactment of s. 23, is authority for that principle. Although this has been considered as a question of evidence rather than of substantive law, the rule takes on a heightened significance when the document is a third-party one.
The Manitoba Court of Appeal held that the evidence did not establish that the letter from Mr. Daily’s accountant to his lawyer was Mr. Daily’s deliberate or fixed and final expression of his intention. There was no evidence that he even knew of the letter, let alone that he considered it to be his will. He did not get a letter from his doctor, and may have changed his mind after meeting with Mr. Lee.
Mr. Justice Philp concluded:
82 In my view, the evidence put before the court on Mr. George's application is not sufficient to meet the onus upon him under s. 23. With respect, the finding of the motions court judge that the letter "discloses a testamentary intention" is not supported in the evidence. At best, the letter remained instructions for the preparation of his will. It was never touched by the animus testandi of the deceased.
83 Testators do change their minds! And sometimes their instructions are misinterpreted or misunderstood. It is a matter of notorious fact that even formal wills prepared by lawyers after full and careful instructions require, on occasion, amendments or alterations at the time of execution, or even require redrafting after the testator has reviewed the document. The cautionary and evidentiary functions of the formalities of the Act operate to ensure that in those kinds of situations the will that is eventually executed by the testator represents his/her testamentary intentions.
84 In this case the deceased died two months after his meeting with Mr. Lee, and with no intervening contact or communication with him. In the circumstances of this case, that unexplained hiatus is another factor, if one was necessary, which militates against a finding of testamentary intention.