Fuchs v. Fuchs

I am still waiting for some reported British Columbia cases interpreting section 59 of the Wills, Estates and Succession Act (“WESA”), which expressly allows the court to rectify a will. Subsections 59 (1) and (2) provide as follows:

Rectification of will
 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).

In the absence of finding a British Columbia cases dealing with this section, I have been looking at cases in other jurisdictions for a paper I am writing for the Continuing Legal Education Society of British Columbia, and have come across some decisions from Alberta.

Alberta, like B.C., recently overhauled its succession law. Alberta’s Wills and Succession Act came into effect in February 1, 2012 (we were a little behind, with B.C.’s WESA coming into effect March 31, 2014). Alberta also now has a provision allowing the court to rectify a will. The wording of subsection 39 (1) of Alberta’s legislation is similar:

Rectification 39(1)  The Court may, on application, order that a will be rectified by adding or deleting characters, words or provisions specified by the Court if the Court is satisfied, on clear and convincing evidence, that the will does not reflect the testator’s intentions because of

(a)    an accidental slip, omission or misdescription, or

(b)    a misunderstanding of, or a failure to give effect to, the testator’s instructions by a person who prepared the will.

One of the cases I have found in which the Alberta Court of Queen’s Bench rectified a will under Alberta’s legislation, Fuchs v. Fuchs, 2013 ABQB 76 (CanLII), is interesting because of an interplay between changes in legislation dealing with the effect of marriage on a will, as well as the transition rules reflecting whether the new legislation applies or the old.

In 1998, Hans Fuchs and Barbara Fuchs began co-habiting. Mr. Fuchs made his will on June 22, 1999 leaving his estate to Barbara Fuchs. They were not yet legally married, and the will did not contain a clause stating it was in contemplation of marriage. Mr. and Mrs. Fuchs were legally married on April 20, 2001. Mr. Fuchs died on February 8, 2012.  

At the time Mr. Fuchs made his will, the old Alberta law, the Alberta Wills Act, provided that marriage revoked a will unless there was a declaration in the will that it was made in contemplation of marriage. Again, this is similar to British Columbia’s old Wills Act. Like British Columbia, Alberta’s new legislation has changed the law so that marriage no longer revokes a will.

If the Fuchs’ marriage revoked Mr. Fuchs’ will, then he would have died without a will, and Mrs. Fuchs would be entitled to half of the estate under Alberta’s intestacy rules, and his children from a previous marriage would be entitled to the other half. But if the will were found to be valid, then Mrs. Fuchs receives the entire estate.

Here is where the transition rules become interesting. You may notice that Mr. Fuchs died shortly after the new legislation came into effect in Alberta. The old law said marriage revokes a will unless there is a declaration that it is made in contemplation of marriage, but the new legislation does not. Associate Chief Justice Rooke held that the old law still applies in this case because under section 8 of Alberta’s Wills and Succession Act, the old law applies if the will was made before February 1, 2012. The date of the will, rather than the date of death, is the key date in respect of whether marriage revokes a will.

However, section 8 also provides that section 39 of Alberta’s Wills and Succession Act allowing the court to rectify a will applies if the will-maker died after the new law came into effect.

Associate Chief Justice Rooke found that Mr. Fuchs intended that his will would remain valid after his marriage, and that he made it in contemplation of his marriage to Mrs. Fuchs. Accordingly, Associate Chief Justice Rooke applied Alberta's rectification provision to rectify teh will by adding the sentence: "This will is in contemplation of my marriage to my friend BARBARA LIPPKA [Mrs. Fuchs' maiden name] at such time as I am legally able to do so." 

In the result, the Court held that Mr. Fuchs' will was not revoked by the marriage, and Mrs. Fuchs was entitled to his estate under the will.

The transition rules in British Columbia are a little different, but I think a court in B.C. could apply the same analysis on similar facts. In British Columbia, although I am not aware of any cases on point yet, the key event for determining whether a marriage revokes a will is likely the date of the marriage (rather than the date of the will or the date of death). This is because of section 186 (3). Section 186 says,

Transition — application of Part 4

186 (1)Subject to subsections (2) and (3) of this section and section 189, Part 4 [Wills] applies to a will, whenever executed, if the will-maker dies on or after the date on which Part 4 comes into force.

(2) Subsection (1) does not invalidate a will validly made before the date on which Part 4 comes into force.

(3) Subsection (1) does not revive a will validly revoked before the date on which Part 4 comes into force.

Under B.C.s old Wills Act, marriage revoked a will unless it was made in contemplation of marriage. If the marriage occurred before WESA came into effect on March 31, 2014, the marriage would have revoked the will, and pursuant to subsection 186 (3), the will would not be revived by WESA.

However, the rectification provision in section 59 applies if the will maker died after WESA came into effect. Accordingly, if a will-maker in B.C. dies on or after March 31, 2014, and the court finds that the will made prior to marriage omitted the phrase “this will is made in contemplation of my marriage to…” 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…,”

the court could rectify the will by adding the necessary words, in which case, the marriage will not have revoked the will.