In the decision of Paige v. Noel, 2025 BCCA 358, the British Columbia Court of Appeal has arguably narrowed the criteria for determining whether to give effect under section 58 of the Wills, Estates and Succession Act (the “WESA”) to a document or other record that does not comply with the formal signing requirements for a will. Traditionally, British Columbia had very strict requirements for signing a witnessing a will in order for the document to be effective, but when the WESA came into effect in 2014 the law gave the court the authority to give effect to a non-compliant record “if the court determines that a record, document or writing or marking on a will or document represents… the testamentary intentions of a deceased person.”

The general test that the courts have applied in B.C. is whether the document or other record reflects “a deliberate or fixed and final expression of intention.”

The Court of Appeal has added the requirement “that the document is intended to operate as a will or as an alteration or revocation to an existing will.” This is quoted from paragraph 50 of the decision.

In Paige, Barbara Kissel died on January 7, 2023. She had made a will dated August 7, 2014, in which she appointed Michelle Noel as her executor and left her estate to Jennifer Paige and Adrian Kissel. There was no issue as to the validity of the will. However, she later sent messages to Ms. Noel indicating that she wanted to take Ms. Paige out of her will. As described in the Court of Appeal decision, there were two messages:

[7]            The record in issue is comprised of two electronic messages sent by the deceased to Michelle in October 2022 (which I will refer to as the Messages, as did the chambers judge). The first was a text exchange sent on October 6, 2022:

The deceased:            On a completely different note ... I have an appointment with the notary on the 14th to redo my will ...

Michelle:                      Oh boy, a redo?

The deceased:            Yes ... redo … Jennifer is out ....

Michelle:                      Well I don’t blame you, that wasn’t an easy decision and one I know you didn’t make lightly

The deceased:            I agree ... Jennifer has cut off her nose to spite her face. Once the redo is done I will give you a copy and explain more ....

                                    …

                                    Oh jeez…I didn’t even ask you…will you continue to be my executrix?

Michelle:                      Oh absolutely

The deceased:            MERCI beaucoup

[Emphasis in original.]

 

[8]            The second was an email sent on October 15, 2022:

… Just to have a paper trail … here is an update regarding my will. The notary I am using is Blandyna Skowronska …

I met with her yesterday and conveyed the changes I wanted. She said it would take about two weeks for the new will to be drawn up and registered. She said one option I had was to destroy all copies of my current will which would remove Jennifer immediately. However, should I pass away before the new will is registered, my estate, such as it is, would go to probate court and could be tied up for years. Going to probate also means that the governments have a say in distribution of assets. So, the current will that you have will stand until I get a new one.

In November, the deceased texted Ms. Noel indicating that she was going to go to a different Notary, and on January 3, 2023, she sent an email to neighbour who was a lawyer asking if her firm dealt with wills stating she wanted to “make a very minor change.” She died a few days later.

The Supreme Court of British Columbia judge found that the text message removing Ms. Paige represented her fixed and final intention and gave effect to the message pursuant to s. 58 of the WESA. Her reasons are set out in the Court of Appeal decision:

[25]         In concluding that the Messages represented the deceased’s fixed and final intention to alter the 2014 will to remove Jennifer as a beneficiary, the judge made the following findings (at para. 53):

·       the deceased did not waiver from her stated intention from October 6 up to her death;

·       her reasons for removing Jennifer were clear;

·       she was taking steps to accomplish this by seeking the assistance of two notaries and a lawyer; and

·       for reasons beyond her control, she was not able to complete a new will.

Ms. Paige appealed, and in allowing the appeal, the Madam Justice Fisher for the Court of Appeal described the criteria as follows:

[23]         The importance of the words “fixed and final at the material time” cannot be understated. As I explain further below, this is because s. 58(2) requires that the record, document or writing represents the testamentary intention of the deceased person, whether to make a will or to revoke or alter an existing will. A fixed and final intention must be grounded in the document itself, in that the document is intended to effect the testamentary intention.

Madam Justice Fisher reasoned:

[52]         The judge’s conclusion that the Messages reflected the deceased’s fixed and final intention cannot be reconciled with the content of the Messages themselves or with the surrounding circumstances. It is clear the deceased was unhappy with Jennifer and expressed an intention to alter her will to remove Jennifer as a beneficiary. But that intention cannot be considered fixed and final because it is equally clear that the deceased intended to effect that alteration by making a new will, and until she did so, the 2014 will was to remain operative.

….

[55]         The extrinsic evidence does not displace the words in the Messages. The deceased expressed the desire to remove Jennifer as a beneficiary to others in October 2022 and again in January 2023. She also set up but did not follow through with an appointment with a second notary in early November 2022 for reasons stated as health reasons. However, there is no evidence about the deceased’s state of health after early November that would explain why she did not take any steps to make a new will for almost two months. There is also no evidence that the deceased provided instructions to a notary or a lawyer after early November. The implications of the deceased’s email to her neighbour in January 2023 indicating that she wanted to make a “very minor change” to her will are at best unclear. In my view, the judge’s interpretation of this as not inconsistent with removing a beneficiary — that the required amendment could be minor despite the significant impact — is speculative.

[56]         The record also includes evidence from Jennifer about her positive interactions with the deceased in November 2022 — which was after the deceased’s communications with Michelle that were found to indicate an attempt to maintain a semblance of normalcy in her interactions with Jennifer. Moreover, while the judge was entitled to place less weight on Jennifer’s perceptions of the deceased’s state of mind, that evidence was not irrelevant.

In the result, Ms. Paige is entitled to a share of the estate.

Although the Court of Appeal’s decision is reasonable on the facts, I suggest that the court may have made the requirements a little too narrow.

I can conceive of circumstances in which the deceased makes a document that clearly demonstrates a deliberate or fixed and final intention without intending that document to be operative as a will. For example, the document may be a very clear instruction to a lawyer on what is to go in a will, but the deceased dies unexpectedly, shortly thereafter without have a reasonable opportunity to meet with the lawyer to sign the new will.