The Wills, Estates and Succession Act retains the formal requirements of the current Wills Act. Section 37 (1) of the Wills, Estates and Succession Act says:
(1) To be valid, a will must be
(a) in writing,
(b) signed at its end by the will-maker, or the signature at the end must be acknowledged by the will-maker as his or hers, in the presence of 2 or more witnesses present at the same time, and
(c) signed by 2 or more of the witnesses in the presence of the will-maker.
But section 58 will allow applications to court to cure deficiencies. It says:
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 broadly will the courts in British Columbia apply this section when the Wills, Estates and Succession Act is brought into force?
Surely this provision would have saved the codicil in Toomey v. Davis, 2003 BCSC 1211, a case in which the testator signed a codicil amending his will in the presence of two witnesses, but one of the witnesses did not sign the codicil in the presence of the testator. The second witness signed it later. Because the courts have strictly applied the formal requirements of the Wills Act, Mr. Justice Trustcott was unable to give effect to the codicil, despite his being “completely satisfied that the codicil does express the true intentions of the testator as proven by the evidence and that the non-compliance with s. 4(c) was completely inadvertent and does not raise any doubt about the reliability of the codicil being a true record of the testator’s wishes.”
But the wording of section 58 is quite broad. Could the court give effect to notes made by someone to instruct a lawyer to draft a will, if the person who made the notes died before a will is signed? How about an email in which the sender says she intends to leave her estate to the recipient of the email?
There is arguably a distinction between a person making a document or record that he or she intends to be a will, and expressing an intention in writing that he or she intends to make a will.
We will have to wait some time to see how the courts apply section 58, which is not in force as of the date of this post.