Henriksen Estate

 

The Wills, Estates and Succession Act allows the court to give effect to a document or other record as a will even though the will does not comply with the formal signing and witnessing requirements for making a valid will in British Columbia. Section 58 has been used to non-compliant documents if the court finds that the document is authentic and represents a deliberate or fixed final intention of a deceased person.

But what if the document is created after the death of that person?

This is what occurred in Henriksen Estate, 2026 BCSC 1058. Krista Henriksen and Awad Mohamed met with a lawyer to make wills, powers of attorney and representation agreements. Their instructions to the lawyer were that they wanted to make wills that were like each other, or mirror wills, except for a gift of jewelry in Ms. Henriksen’s will. Each was going to name the other as executor and leave the residue of their estates to each other, with the same contingent beneficiaries named on the death of the last of them to die.

The lawyer initially drafted Mr. Mohamed’s will. Similarly, the lawyer drafted a power of attorney and representation agreement in Ms. Henriksen’s name. She sent the drafts to them by email, explaining that because they would be mirror documents, she would finalize the draft for one person before creating the final version of the other.

They asked for some revisions, and a revised draft of Mr. Mohamed’s will was completed in June 2025, and was sent to them. Before a meeting was scheduled to sign the documents, Ms. Henriksen died suddenly on July 4, 2025, without her will having been drafted.

The lawyer’s office drafted the will after she passed, and Mr. Mohamed asked the court to give effect to the will.

Justice Morley reviewed the jurisprudence, noting that a broad purpose of s. 58 was to be “more flexible in realizing testator intent, although it also includes the sometimes competing purposes of ensuring authenticity and guarding against fraud. “

However, Justice Morley held that the flexibility of purpose did not extend to giving effect to a document that did not exist before death.

[40]         But notice that s. 58 does not permit a court simply to give effect to what it finds to be the fixed and final testamentary intentions of the deceased. Rather, the court must find a record, document, writing or marking that is to be given effect. If all that mattered was intention, then this would be unnecessary. The court could simply draft the will that best represents the best evidence of what the testator wanted. Section 58 does not allow that.

[41]         This reflects a theme that is also present in the BCLI Report [British Columbia Law Institute: Wills, Estates and Succession: A Modern Legal Framework], namely that the traditional formalities of will making fulfilled important functions, even though they sometimes created injustices. The purpose of the legislation was not just to throw away the vestiges of the past, but to do so in a way that maintained the benefits of the older system.

[42]         The most fundamental formality of all was — and remains — that a will must be in writing or at least recorded. This dates back to the very introduction of wills into the English legal system. Even if a court could be morally certain of what the deceased’s intentions were, if they were merely orally expressed, they could not be given effect by a court. That principle was not changed by s. 58, since it does not permit a court to author a will but just to give effect to a record, document or writing.

[43]         In my view, there is no real difference between a court creating a will after death from what it knows of the deceased’s testamentary intentions and a solicitor doing so and then asking for the court to bless the result. If a solicitor could simply, after death, draft a will based on instructions, then all that would matter would be the deceased’s intentions. As a result, in my view, a draft created after death out of the oral instructions of the deceased would not, in the relevant sense, be a record, document, writing or marking.

But this was not the end of the analysis.

Section 59(1) of the Wills, Estates and Succession Act provides:

On application for rectification of a will, the court, sitting as a court of construction or as a court of probate, may order that the will be rectified if the court determines that the will fails to carry out the will-maker's intentions because of

(a)        an error arising from an accidental slip or omission,

(b)        a misunderstanding of the will-maker's instructions, or

(c)        a failure to carry out the will-maker's instructions.

Justice Morley applied s. 59 to rectify the will in Mr. Mohamed’s name, which was drafted before Ms. Henriksen’s death, so that it was treated as Ms. Henriksen’s will and the appointment of Ms. Henriksen as executor and beneficiary was rectified so Mr. Mohamed was the executor and beneficiary.

Justice Morley wrote:

[52]        “Failure to carry out the will-maker’s instructions” need not mean a culpable failure. In my view, this is a relatively easy case for rectification under s. 59(1)(c). The June Draft failed to carry out the will-maker’s intentions because of firm policy in the context of mirror wills still in development. This fits within the meaning of s. 59(1)(c).

 

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.

Zaleschuk Estate

Victor Stephen Zaleschuk died on January 2, 2022, leaving his spouse, Wendy Chen, and two children, Shane Zaleschuk and Christian Zaleschuk. Most of his wealth was in California, and was held in two trusts. This case considers the interpretation of a Will he made on January 12, 2020, governing his British Columbia assets, which consisted of a residence in Victoria, and a handful of assets of significantly less value, and no funds. His son Shane was living in a suite in the residence.

The Will appointed Ms. Chen has his executor and included the following:

a).        I DISTRIBUTE MY ASSETS AS FOLLOWS:

i).         Residence at 750 Pears Road, Victoria, British Columbia, Canada, V9C 3Z8 to Wendy Xin Hong Chen. All Farm equipment and implements included.

ii).        2016 Ford Flex to Wendy Xin Hong Chen.

iii).        2011 Ford F-150 to Shane Zaleschuk.

iv).       All shop tools, Nikon Camera, Gold Bracelet with Lapis & Diamonds to Shane Zaleschuk.

b).        I DISTRIBUTE ANY RESIDUE OF MY ESTATE AS FOLLOWS:

To both Wendy Xin Hong Chen and Shane Zaleschuk all Art & Jewelry and personal belongings as they see fit.

5).        I give my Executrix the following POWERS:

Power of sale, realization, employ agents, and power of dispute resolution.

***When and if the property is sold: Shane Zaleschuk to receive $150,000 CAD. Steve Whitner (a minor) to receive $25,000 CAD invested towards a[n] Educational Trust Fund.

6).        This Will was executed in Canada for Canadian Assets ONLY. My updated (01-01-2020) USA Children’s Trust takes precedent of ALL MY ASSETS OUTSIDE OF CANADA.

There was an error in the description of the beneficiary Steve Whitner, whose last name is Widner.

In a letter to his lawyer in California seeking advice concerning his U.S. estate planning, he described his plans for his residence in Victoria:

This property to be gifted (***) to Wendy Xin Hong Chen with the following caveats

i).         Suite will remain as Shane Zaleschuk residence. If the property is sold Shane to receive $150,000 CAD. A $25,000 Education Fund gifted to Steve Whitner.

A Canadian Trust does not work as I am not a full time resident of Canada. A Canada Will is included to clarify Canadian assets only.

ii).        As the mortgage renewal will be due April - 2020.....Wendy will be added to the title.

***After which Wendy will automatically inherent by Canada Law. But the Will must be adhered to regarding the sale of the property.

It should be noted that Wendy Chen was not in fact added to the title of the residence and it formed part of the British Columbia estate.

In her reasons for judgment, in Zaleschuk Estate, 2023 BCSC 523, Madam Justice Young first dealt with a challenge by Shane to his father’s capacity to make a will, and found that he did have capacity and that the Will is valid.

The more interesting aspects of the decision involve the interpretation of the will in light of reforms made in 2014 to British Columbia’s succession laws when the Wills, Estates and Succession Act came into effect. The reforms liberalized the types of evidence admissible when construing a will, permitted the court to rectify mistakes in a will, and also permitted the court to give effect to a document or other record that does not comply with the formal signing and witnessing requirements of a will.

Wendy Chen argued that she was entitled to the residence, and that the payments of $150,000 and $25,000 were void because they are inconsistent with the gift of the residence to her.

Shane Zaleschuk argued that the gift of the residence was subject to a trust requiring her to pay those cash gifts when she sold the residence. He also argued that the letter to the California lawyer, referred to in the decision as the “Record,” gave him the right to occupy the suite in the residence.

The most relevant provisions of the Wills, Estates and Succession Act are: 4(2), 58 (1) through (3), 59 (1) and (2):

4(2)        Extrinsic evidence of testamentary intent, including a statement made by the will-maker, is not admissible to assist in the construction of a testamentary instrument unless

(a)        a provision of the will is meaningless,

(b)        a provision of the testamentary instrument is ambiguous

(i)         on its face, or

(ii)        in light of evidence, other than evidence of the will‑maker's intention, demonstrating that the language used in the testamentary instrument is ambiguous having regard to surrounding circumstances, or

(c)        extrinsic evidence is expressly permitted by this Act.

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.

 

59 (1)   On application for rectification of a will, the court, sitting as a court of construction or as a court of probate, may order that the will be rectified if the court determines that the will fails to carry out the will-maker's intentions because of

(a)        an error arising from an accidental slip or omission,

(b)        a misunderstanding of the will-maker's instructions, or

(c)        a failure to carry out the will-maker's instructions.

(2)        Extrinsic evidence, including evidence of the will-maker's intent, is admissible to prove the existence of a circumstance described in subsection (1).

Ms. Chen argued that there was no ambiguity in the will permitting extrinsic evidence, but rather two inconsistent gifts, and the absolute gift to her prevails over the inconsistent cash gifts. Madam Justice Young wrote:

[58]       The executor here submits that it is not appropriate to consider extraneous evidence when constructing a will which needs no clarification. Extraneous evidence is only considered when there is a need for clarification of a will. She cites ElliottEstate v. Elliott, 1998 Can LII 4471 which has some similarities to the present case. Of note, that case predated the enactment of the WESA, and so deals with the stricter common law rules of construction. The WESA came into force in 2014. Prior to that, the court had no power to rectify a will (Simpson v. Simpson Estate, 2022 BCCA 208 at para. 70).

[59]       In Elliott the will provided the petitioner with an absolute bequest of the testator’s estate. The respondents who had lived on the property for many years submitted that it was most probable that the testator intended to bequeath his property in trust to the petitioner subject to the life estate of the respondents.

[60]       The central issue in the case was what interest under the testator’s will did the respondents have in the house that they occupied. Justice Edwards found that this was not a case of a patent omission or even of ambiguity. It was a case where unambiguous but contradictory bequests were found in the same will. If the initial bequest to the executor of the property stood alone in the will it could only be interpreted as an absolute gift of the entire estate to her. If the other bequests stood alone they could not be said to be ambiguous as to the intention to create life estates or specific bequests of modest sums. The two gifts were inconsistent (Elliott at para. 19).

[61]       Justice Edwards found that the case before him was not a case of ambiguity which would permit the court to entertain evidence of surrounding circumstances in order to determine the testator’s intention or supply some omission (para. 20). He found that it was a case of a will containing incompatible bequests which were governed by the Blackburn and Cox v. McMillan (1902), 33 S.C.R. 65 line of authority (para. 21).

Citing Theimer Estate, 2012 BCSC 629, Justice Young held that the proper approach is to consider the Will as a whole in light of properly admissible extrinsic evidence.

She held that she could consider the letter to the California lawyer to assist in determining Victor Zaleschuk’s intentions. She found that it supported the view that he intended to impose a trust on the residence requiring payment of the cash gifts if and when it is sold.

In contrast, Madam Justice Young did not give effect to the statement in the letter permitting Shane to continue to live in the suite in the residence. The letter, though authentic, did not represent Victor Zaleschuk’s final testamentary intention.

Justice Young wrote:

[97]       I conclude that the Record is a working paper prepared to obtain advice from Mr. Watt and possibly from Shelsey Robertson as to whether the deceased’s overall estate plan is “doable”. It does not set out the deceased’s fixed and final expression of intention as to the disposal of the deceased’s property on death. I am influenced by his statement that “this is the second draft that I mailed to Mr Watts after he made a few changes”.

[98]       The gift to Shane of a life estate to the suite in the Residence is inconsistent with the gift of the property to Wendy. It is not provided for in the Will.

….

[100]    The cash legacies to Shane and to Steve Widner are repeated in the Will and although inconsistent with an absolute gift, I am satisfied that the deceased did intend that these cash legacies be paid. I find that the cash legacy clause should be read in as a trust imposed on Ms. Chen to pay if she sells the Residence.

[101]    I am not satisfied that the words “Suite will remain as Shane Zaleschuk residence” should be added to the Will. The Record is not a testamentary document. It sets out a plan for the U.S. and Canadian assets but some of it was not implemented, and the note changed on a few occasions, although the orphan signature page remains the same.

Justice Young declared:

      iii.        the subclause in clause 5 of the Will as corrected is valid:

 ***When and if the property is sold: Shane Zaleschuk to receive $150,000 CAD. Steve Widner (a minor) to receive $25,000 CAD invested towards a[n] Educational Trust Fund.

Supreme Court of British Columbia Gives Effect to an Unsigned Draft Will During Covid-19

Getting wills signed during Covid-19 has been a challenge, especially for persons in retirement communities and care homes when visitors are restrictions. The process those of us who are estate-planning lawyers like to follow of meeting our clients in person to review the final drafts of their wills and act as one of the two witnesses has often been thwarted. No doubt many wills have gone unsigned for months, with the increased risk of death before the wills are completed.

In a recent decision, Bishop Estate v. Sheardown, 2021 BCSC 1571, the Supreme Court of British Columbia gave effect to a draft will that was left unsigned because of Covid-19 restrictions. Section 58 of the Wills, Estates and Succession Act allows the court to give effect to a document or other record in British Columbia even though the document has not been signed and witnessed in accordance with the formal requirements for making a valid will. This provision has been used in a wide variety of contexts to give effect to a document if the court is satisfied that the document is authentic and reflects the deliberate or fixed and final intentions of the now deceased person. As I have written before, it may be difficult to satisfy a court to give effect to a draft will prepared by a lawyer months before the person died, without a good explanation of why the lawyer’s client didn’t make an appointment with her lawyer to sign the will. In Bishop Estate, there was a good explanation: Covid-19.

On June 27, 2014 Marilyn Carole Bishop and her husband made wills in which each left everything to the other, and if the other had died, to the Kelowna General Hospital Foundation. The Bishops did not have any children. Mr. Bishop had been treated at the Kelowna General Hospital, and their gifts to the Foundation reflected their gratitude for his treatment. 

After Mr. Bishop’s death, Ms. Bishop’s nephew Robert Sheardown and his wife, Deborah Sheardown, moved to Kamloops, nears where Ms. Bishop resided. They became very close and they assisted her.

In February 2020, Ms. Bishop met with her lawyer to revise her will. She told her lawyer, Matthew Livingston, that she wanted to give most of here estate to the Sheardowns. She wanted to give a gift to their daughter and was considering modest gifts to some o charities. She said the gift to the Kelowna General Hospital Foundation was her husband’s idea and she had no connection to Kelowna, which she considered two far away.

Mr. Livingston drafted a will for her, with some questions. She delivered a note to him setting out Ms. Sheardown’s full name, that she wanted to give a brooch to her great-niece and “No charities at this time.”

On March 17, 2020, she booked an appointment for March 20, to sign the final draft will, which reflected the changes as set out in her note. On March 19, she cancelled her appointment. By that time, the care home in which she lived had prohibited residents from leaving other than for medical appointments, and did not permit visitors, in order to protect residents from Covid-19. Ms. Bishop died on July 20, 2020, without signing her will.

The Kelowna General Hospital Foundation argued that the 2020 draft will should not be given effect. They argued that the words “No charities at this time,” implied that Ms. Bishop had not demonstrate a fixed and final intention. However, Madam Justice Matthews that wills are by their nature revocable, and the issue is whether the intentions are fixed and final at the relevant time. It is not necessary for someone to decide that they would not change the will in the future.

In finding that the document did reflect Ms. Bishop’s fixed and final intentions, Madam Justice Matthews carefully reviewed the facts:

[38]         It is evident that Ms. Bishop reviewed the draft that Mr. Livingston sent to her on February 12, 2020. Her handwritten note that she delivered on March 3, 2020, directly responded to each of Mr. Livingston’s questions in the comment boxes in the first draft.

[39]         In her note, Ms. Bishop did not suggest any new changes to the will; she simply filled in the blanks that Mr. Livingston had left for her. The first was to fill in Ms. Sheardown’s middle name. The second was to specify a gift for the Sheardowns’ daughter, whom Ms. Bishop had already mentioned that she would like to give a gift to. Although Mr. Livingston had discussed the possibility of a registered education savings plan for her, Ms. Bishop ultimately decided to give her a gold brooch.

[40]         The same can be said of Ms. Bishop’s third instruction, “no charities at this time”. When she met with Mr. Livingston, Ms. Bishop indicated that while she did not want to give a gift to Kelowna General Hospital Foundation, she might want to make a couple of modest gifts to specific charities. In the month that followed, Ms. Bishop decided she did not want to make charitable gifts.  This is not problematic. The gifts initially proposed were relatively minor: $10,000–$20,000 for each of Thomson Rivers University and the Firefighters’ Burn Fund. At most, this represented approximately 7% of her total estate.

[41]         Kelowna General Hospital Foundation submits that the language of “at this time” indicates that Ms. Bishop’s intentions lacked finality. I am not satisfied that it demonstrates that her intentions were not final. As Dickson J. notes in Young Estate at para. 35, a fixed and final intention cannot mean that the intention is irrevocable, since wills are, by their nature, revocable until the testator’s death. Rather, the intention need only “be fixed and final at the material time”.

[42]         Accordingly, the mere mention of “at this time” is not enough to overcome the considerable evidence that suggests that her intentions were fixed and final. Her instruction was not an equivocation; it was a clear expression of her fixed and final intention at the time she delivered the note on March 3, 2020. Of course, in this case, the material time stretches beyond March 3 to the date of Ms. Bishop’s death; nevertheless, as I will discuss, nothing suggests that Ms. Bishop’s intention to not give to any charities changed in that time.

[43]         Ms. Bishop did not request any substantive changes to the draft. The manner in which she responded to Mr. Livingston’s questions suggests that she was satisfied with the unexecuted 2020 will and was prepared to execute it. When she was asked if she wanted to review it again in advance of an appointment to sign it, she made an appointment to sign it. In the circumstances, it cannot be said that the unexecuted 2020 will “was not seen, or read, or written, or in some way authenticated, or adopted”: George v. Daily (1997), 143 D.L.R. (4^th) 273 (Man. C.A.) at para. 56.

[44]         It is relevant that the unexecuted 2020 will makes considerable sense in the circumstances: Hubschi Estate (Re), 2019 BCSC 2040 at para. 40. Based on the evidence, it is unsurprising that Ms. Bishop would wish to name the Sheardowns as the executors and primary beneficiaries of her estate and to remove Kelowna General Hospital Foundation as a beneficiary.

[45]         The document and the context in which it is made has the hallmarks of fixed and final testamentary intention in that bears the title of a will, it was made by a lawyer retained by Ms. Bishop for that purpose, it revokes her prior wills, it directs how her remains are to be dealt with, it names executors and beneficiaries including an alternate beneficiary. The beneficiaries make sense in the context of Ms. Bishop’s relationships. Ms. Bishop’s response to Mr. Livingston’s questions provided him with the information necessary to complete the draft.

Accordingly, the Sheardowns will receive Ms. Bishop’s estate.

Hubschi Estate

The decision in Hubschi Estate, 2019 BCSC 2040, illustrates three significant points concerning the application of section 58 of British Columbia’s Wills, Estates and Succession Act, which allows the Supreme Court of British Columbia to give effect to a document  or record that does not comply with the formal signing and witnessing requirements for a valid will. First, the case illustrates the importance of the factual context including the relationships between the deceased and the beneficiaries. Secondly, this case confirms that the court may give effect to a digital record on a computer. Thirdly, the maker of the document need not have intended that the specific document or record to operate as a will. 

Beat George Hubschi died in June 2017, without a formal signed and witnessed will. He did not have a spouse or children. His mother left him in the care of the Children’s Aid Society of the Catholic Archdiocese of Vancouver at the age of three. He did not have contact with her after that, nor with her relatives. He grew up in the home of Mary and Jack Stack under a foster home agreement. They treated him as their own, and they had five children, who treated him as a brother. Mary Stack, who died in 2011, including him among her children in her will. However, he was never adopted.

After his death, one of the Stack children, Gregory stack found the following records on Mr. Hubschi’s computer:

a.     “Budget for 2017”
b.     the document called Budget for 2017 included the following:

Get a will made out at some point. A5 – way assets split for remaining brother and sisters. Greg, and at or Trevor as executor.

Mr. Hubschi had surgery for problems in his legs and died 22 days after he was discharged from the hospital. He was in pain after his discharge, lived alone, and did not leave his home. 

Greg Stack applied to court to give effect to the computer record as Mr. Hubschi’s testamentary intentions. If successful, the estate would be divided equally among the five Stack children. If not, then it would go to Mr. Hubschi’s intestate heirs. Mr. Hubschi’s biological mother had died before him, and the closest living biological relatives appear to be his aunt and a cousin, both of whom lived in Switzerland, and were sent notice of the application, but did not appear to oppose it.

Section 58 (1) through (3) provides:

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.

In his reasons for judgment, Mr. Justice Armstrong set out the legal tests as follows:

[30]         Under s. 58, there is no “minimum level of execution or other formality for a testamentary document to be found fully effective” (Hadley Estate at para. 35). If a court grants an order under s. 58(3) a document may be admitted to probate regardless of its form (at para. 35).

[31]         The party seeking an order under s. 58(3) must demonstrate, on a balance of probabilities, that: (1) the testamentary document is authentic; and (2) the testamentary document contains the full, final and fixed intention of the will-maker.

[32]         Hadley Estate states:

[36]         As discussed in Estate of Young, s. 58 is very similar to Manitoba’s curative provision and thus the leading appellate authority on its meaning is George v. Daily. George and several other Manitoba authorities are reviewed in Estate of Young, which review need not be repeated. Their import is summarized at paras. 34–37:

[34]      As is apparent from the foregoing, a determination of whether to exercise the court’s curative power with respect to a non-compliant document is inevitably and intensely fact-sensitive. Two principal issues for consideration emerge from the post-1995 Manitoba authorities. The first [is] an obvious threshold issue:  is the document authentic?  The second, and core, issue is whether the non-compliant document represents the deceased’s testamentary intentions, as that concept was explained in George.

[35]      In George the court confirmed that testamentary intention means much more than the expression of how a person would like his or her property to be disposed of after death. The key question is whether the document records a deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death. A deliberate or fixed and final intention is not the equivalent of an irrevocable intention, given that a will, by its nature, is revocable until the death of its maker. Rather, the intention must be fixed and final at the material time, which will vary depending on the circumstances.

[36]      The burden of proof that a non-compliant document embodies the deceased’s testamentary intentions is a balance of probabilities. A wide range of factors may be relevant to establishing their existence in a particular case. Although context specific, these factors may include the presence of the deceased’s signature, the deceased’s handwriting, witness signatures, revocation of previous wills, funeral arrangements, specific bequests and the title of the document:  Sawatzky at para. 21; Kuszak at para. 7; Martineau at para. 21.
[Emphasis in Mr. Justice Armstrong’s reasons.]

[37]      While imperfect or even non-compliance with formal testamentary requirements may be overcome by application of a sufficiently broad curative provision, the further a document departs from the formal requirements the harder it may be for the court to find it embodies the deceased’s testamentary intention:  George at para. 81.

Mr. Justice Armstrong confirmed that the computer document is a “record” to which section 58 may be applied. Although I think this is clear from a reading of section 58, I am not aware of any previous reported British Columbia cases considering this issue.

Mr. Justice Armstrong was satisfied that Mr. Hubschi created the record. He then considered the wording indicating that Mr. Hubschi intended to make a formal will in the future. He found that the fact that Mr. Hubschi intended to make a formal will int eh future did not prevent the court from giving effect to the computer record, provided that it represented Mr. Hubschi’s fixed and final intention. In looking at the record in the context of Mr. Hubschi’s relationships with the Stack family, he found that it did.

Mr. Justice Armstrong wrote:

[56]         The next question is whether these words represent a deliberate or fixed and final expression of Mr. Hubschi’s intention to dispose of his property to his family members at death. The question is whether the noncompliant computer record embodied Mr. Hubschi’s testamentary intentions on the day he died.

[57]         The question to be answered in this case is whether the deceased’s use of the phrase “get a will made out at some point” is sufficient, in the light of all of the circumstances including the relationship with his siblings, the proximity of his death to his last viewing of the document, the proposed disposition of his entire estate to his siblings, and his receipt of an equal share in Mary Stack’s estate.

[58]         Although the words in his computer record contemplate preparation of a formal will at some time in the future, I conclude that Mr. Hubschi’s testamentary intentions were reflected at the time he created the computer entry and when he reviewed the document on the day he died based on:

a.     the details concerning his history and ongoing close relationship with the Stack children,

b.     the Stack children’s ongoing care for him,

c.     the obvious deterioration in his health at the time he opened this document on his computer on the day he died, and

d.     the division of Mrs. Stack’s estate between Mr. Hubschi and his brothers and sisters.

[59]         Thus, although the deceased’s words are noncompliant with the provisions in WESA, I conclude that it was the deceased’s testamentary intention that his estate should be divided by “A 5 – way split for remaining brother and sisters.”

[60]         I order that the document prepared by Mr. Hubschi will be fully effective as though it had been made as the testamentary intention of Mr. Hubschi and that probate of the will be granted to Gregory Kenneth Stack on the basis each of the Stack children will receive a one-fifth interest in his estate.

Re: Levesque

[This post is a guest post written by Keith Sabey,  of our firm Sabey Rule LLP about a recent case of his in which section 58 of the Wills, Estates and Succession Act was applied to a will in which the will-maker used white out to remove a beneficiary.]

When you complete your estate planning with a lawyer, you will generally receive a reporting letter, which explains the work completed. The letter will also typically contain cautions against doing certain things like writing on or marking the Will or removing the staples from the Will.

Unfortunately, it is not uncommon for will-makers to write on or otherwise make various markings and changes on their originally executed wills. This may be done by accident or it may be done in an attempt by the will-maker to alter or revoke all or portions of their Will. This problem is compounded when the will-maker makes these markings without telling anyone and the issue is only discovered after the time of death. This is not a new problem. The courts have battled with how to deal with this issue for a very long time.

The recent case of Re:Levesque, 2019 BCSC 927 , involved the application of white-out to cover one of seven residual beneficiaries. A disagreement arose between the remaining beneficiaries as to how to deal with the application of the white-out. Unfortunately, the white-out marking was not signed by the will-maker and by two witnesses as required by the Wills, Estates and Succession Act.

In cases where there is a marking on a will, there is a rebuttable presumption that the marking on the Will was made subsequent to the execution of the Will- see the discussion in Gillis v Ardies, 2009 BCSC 215 and in particular para 23. Evidence to the contrary including evidence from the witnesses to the Will is important. For example a witness to the Will may be able to provide evidence as to whether or not the marking on the Will existed at the time of execution of the Will.

Generally speaking, substantive, unsigned and un-witnessed markings on a Will are not effective. However there is a long-standing exception that provides that when a will-maker goes to the trouble of obliterating a word or phrase in a Will, so that it cannot be read upon ordinary inspection, the Will is admitted to probate with the words that are no longer apparent being left blank. In British Columbia, this exception is discussed in s. 54 of WESA. As explained by Mr. Justice Gomery in Re: Levesque, 2019 BCSC 927 at paras 24 – 28:

[24]        Alterations to a will are addressed in s. 54 of the WESA.  Essentially, it requires that an alteration made after the will was executed must be signed by the will’s maker whose signature must be witnessed by two witnesses, in each other’s presence and in the presence of the maker.  These requirements may be avoided:

a)    Under s. 54(4)(a), if the alteration is not substantive;

b)    Under s. 54(3)(a), if the alteration has made a word or provision illegible; or

c)    Under s. 54(3)(b), if the alteration is made effective by an order pursuant to s. 58.

[25]        The Alteration in this case is substantive and s. 54(4)(a) does not apply.

[26]        The exception in s. 54(3)(a) for alterations that make a word or provision illegible dates back to the English Wills Act, 1837 (1 Vict. c. 26, s. 21).  It was determined by the English courts, in reasoning that has been adopted in British Columbia, that the words or provision in question must be impossible to read by ordinary inspection of the document, without chemical or other analysis; Springay Estate (Re), [1991] B.C.J. No. 984 (S.C. Master).

[27]        In this case, an affiant has sworn that the provision in question listing Ms. Nixon as a beneficiary can be read under the white-out by holding the Will up to the light.  I have inspected the Will and come to the same conclusion.  I find that the Alteration has not made the provision illegible within the meaning of s. 54(3)(a).

[28]        The Alteration is therefore ineffective unless it is made effective by an order pursuant to s. 58.

Given that the name under the white-out could still be read by ordinary inspection by holding the Will up to a strong light source, Mr. Justice Gomery then considered the application of s. 58 of the WESA. This section may be used by the Court to find that the marking on a will represents the testamentary intentions of the will-maker to “revoke…[a] testamentary disposition of the deceased person” and for the Court to order that the marking is effective as though it had been properly made “as a revocation, alteration or revival of a will of the deceased person.” At paras 30-37 he explained:

[30]        The leading decision concerning the matters to be considered in deciding whether to make an order under s. 58(3) is Estate of Young, 2015 BCSC 182.  The reasoning in Estate of Young was approved by the Court of Appeal in Hadley Estate (Re), 2017 BCCA 311, aff’g 2016 BCSC 765.  In Estate of Young, Madam Justice Dickson identified two issues.  The first is whether the document – in this case, the Alteration – is authentic.  I have already found that the Alteration was made by the Deceased and the requirement of authenticity is satisfied.

[31]        Dickson J. identified the second issue as the core issue.  She relied on a decision of the Manitoba Court of Appeal addressing equivalent legislation to the WESA in George v. Daily (1997), 143 D.L.R. (4th) 273.  She stated, at paras. 34-36:

[34]      … The second, and core, issue is whether the non-compliant document represents the deceased’s testamentary intentions, as that concept was explained in George.

[35]      In George the court confirmed that testamentary intention means much more than the expression of how a person would like his or her property to be disposed of after death.  The key question is whether the document records a deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death.  A deliberate or fixed and final intention is not the equivalent of an irrevocable intention, given that a will, by its nature, is revocable until the death of its maker.  Rather, the intention must be fixed and final at the material time, which will vary depending on the circumstances.

[36]      The burden of proof that a non-compliant document embodies the deceased’s testamentary intentions is a balance of probabilities.  A wide range of factors may be relevant to establishing their existence in a particular case.  …

[32]        Accordingly, the question I must address, on a balance of probabilities, is whether the Alteration was a deliberate or fixed and final expression of the Deceased’s intention to remove Ms. Nixon from her Will.

[33]        Carefully dabbing white-out over the provision in question was undoubtedly a considered and deliberate act on the part of the Deceased.  She was applying the white-out to the original Will.  It was not a casual act.  The only reasonable inference is that her intention was to remove the provision from the Will.

[34]        There is no evidence that the Deceased was not of sound mind and lacked testamentary capacity at any point before she gave up custody of the Will in June 2018 or indeed before she died.

[35]        The likelihood is that the Deceased applied the white-out after she learned of Ms. Nixon’s marriage in January 2018.  This was nine years after she had made the Will and it is probable that she had forgotten Ms. Leung-Levesque’s advice about altering the Will, or she may not have taken it seriously.  The case reports record many cases in which makers of wills attempt to alter them without complying with the formal requirements.  This tendency of will makers to ignore the requirements of the statute is one of the reasons s. 58 was added to the legislation with the enactment of the WESA in 2009, allowing the Court to approve non-complying alterations and amendments where the will-maker’s intentions and continuing capacity to make a will are clear.

[36]        If the Deceased applied the white-out in the immediate aftermath of learning of Ms. Nixon’s marriage, she took no steps to reinstate or unrevoke the gift to Ms. Nixon after that.  She maintained an affectionate relationship with Ms. Nixon, giving her a marriage gift and congratulating her on her marriage to “a good hard-working man”.  It may be that she no longer felt that Ms. Nixon needed special provision as she had felt nine years earlier.  This is speculation.  The facts I am left with are that the Deceased made the Alteration deliberately, in the knowledge that she was altering the original Will, with the intended effect that Ms. Nixon was removed as a Beneficiary.

[37]        I conclude that the Alteration was a deliberate or fixed and final expression of the Deceased’s intention to remove Ms. Nixon from the Will.  Giving effect to the Deceased’s expressed intention, it is therefore appropriate to order that the Alteration be made effective pursuant to s. 58(3) of the WESA.

Mr. Justice Gomery also provided a useful summary of how costs are typically dealt with in applications where the parties are forced into litigation as a result of the conduct of the Deceased i.e. revoking a beneficiary in the Will without complying with the formal technical requirements, which forced the co-executors to apply to the court for directions. Specifically paras 38 – 41 read:

[38]        The co-executors seek an order for special costs, payable from the Estate.  Ms. Leung-Levesque, Wayne Levesque and Ms. Nixon oppose.

[39]        In Lee v. Lee Estate (1993), 84 B.C.L.R. (2d) 341, Master Horn discussed costs orders in probate or administration actions such as this.  At para. 13 he stated:

·        … In such cases where the validity of a will or the capacity of the testator to make a will or the meaning of a will is in issue, it is sometimes the case that the costs of all parties are ordered to be paid out of the estate. This is upon the principle that where such an issue must be litigated to remove all doubts, then all interested parties must be joined and are entitled to be heard and should not be out of pocket if in the result the litigation does not conclude in their favour. The estate must bear the cost of settling disputes as a cost of administration. This is the reasoning which underlies such cases as Re Dingwall (1967) 65 D.L.R. (3d) 43 (Ont. H.C.) and McNamara v. Hyde [1943] 2 W.W.R. 344 (B.C.S.C.) and Re Lotzkar Estate (1965) 51 W.W.R. 99 (B.C.C.A.). The question to be asked in such case is whether the parties were forced into litigation by the conduct of the testator or the conduct of the main beneficiaries.

[40]        The Court of Appeal quoted Master Horn’s reasoning with approval in Vielbig v. Waterland Estate (1995), 1 B.C.L.R. (3d) 76 at paras. 41-45. [41]        In my view, this is a case in which the parties were forced into litigation by the conduct of the Deceased.  Her alteration of the Will gave rise to a dispute among the beneficiaries of the Will.  It was reasonable for the executors to apply to the Court to resolve the dispute.  All parties’ costs should be paid from the Estate and the executors’ costs should be assessed as special costs; Mawdsley v. Meshen, 2011 BCSC 923 at paras. 35-40.

Another useful broader summary of how costs are handled in estate litigation matters can be found in Mr. Justice Silverman’s discussion in Jung v HSBC, 2007 BCSC 1740 at para 106-107:

[106]      The case law in estate proceedings supports the following general approach:

1.         The costs of and incidental to a proceeding will follow the event unless the court otherwise orders.

2.         If the cause of the litigation originated from the conduct or errors of the testator (i.e., unclear wording or validity of the will), then the costs of all parties will generally be paid from the estate on a full indemnity basis.

3.         If there were circumstances which provided reasonable and sufficient grounds to have brought the action relating to questions of capacity or allege undue influence or fraud, the court will not normally make an order for costs against the unsuccessful party.

4.         In an action under dependent relief legislation (i.e., where the proceedings are adversarial in nature and are not brought about by the actions of the testator), costs follow the event.

5.         All costs awards are subject to the court’s discretion and an overriding test of reasonableness.

Vielbig v. Waterland Estate (1995), 1995 CanLII 2544 (BC CA), 1 B.C.L.R. (3d) 76, 6 E.T.R. (2d) 1 (C.A.) Lee v. Lee Estate (1993), 1993 CanLII 2368 (BC SC), 84 B.C.L.R. (2d) 341, 50 E.T.R. 297

[107]      Underlying the above structure is the acknowledgement that probate actions are unlike other actions.  They are meant to discern the true intentions of someone who is deceased, and give effect to them if possible.  Such actions occupy a special status: Atchison v. Inkster (1983), 1983 CanLII 313 (BC CA), 47 B.C.L.R. 222, 15 E.T.R. 1 (C.A.).

Since the coming into force of s. 58 of WESA, we have developed a useful body of cases, which have begun to outline how far the courts will exercise their power to cure documents and Wills, which are not made in compliance with the strict formal requirements of WESA. It will be interesting to see how the case law develops in the future as the courts are presented with challenging fact patterns.

The case is an important reminder to consult with a lawyer anytime that you are considering making a Will or changes to your existing Will. The costs of having to make court applications regarding improperly completed Wills can be significant; both in terms of the legal costs and the accompanying stresses carried by families during the court proceeding.