In 2014, British Columbia’s Wills, Estates and Succession Act (“WESA”) greatly expanded the Court’s power to cure deficiencies in a Will under section 58, and to rectify a Will under section 59. Prior to the enactment of the WESA, the Court had no power to give effect to Wills that failed to comply with the formal requirements for making a Will, and limited power to correct a Will that failed to properly carry out the will-maker’s intentions, being largely confined to striking words inserted by mistake. Under the WESA,

1. Section 58 empowers the Court to order that a record, document, writing, or marking on a Will or document is fully effective as a Will, even though the formal requirements for the format and execution of the Will have not been met.
2. Section 59 permits the Court to rectify a Will if the Court determines that it fails to carry out the will-maker’s intention due to certain causes, namely, because of an error arising from an accidental slip or omission, a misunderstanding of the will-maker’s instructions, or a failure to carry out the will-maker’s instructions.

Since WESA came into force more than 7 years ago, there have been a number of reported cases dealing with the Court’s curative power under section 58. However, there have been comparatively few cases regarding section 59. A recent decision of the British Columbia Supreme Court, Jamt Estate (Re), 2021 BCSC 788, provides some much-needed guidance regarding the Court’s power to rectify Wills under section 59 of WESA.

The Deceased and The Will

In Jamt Estate (an uncontested proceeding), the Petitioner was one of the nephews of the Deceased. He relied on section 59 of WESA to rectify his uncle’s Will by replacing the sole named beneficiary, Per Kare Jamt, with himself, Per Martin Jamt.

Four years before his death, the Deceased made his Will with the assistance of a lawyer, Mr. Dahl. During his initial meeting with Mr. Dahl, the Deceased had recounted his general history, including that he had been born in Norway, had come to Canada in the 1950s, and had never married or had children. He instructed Mr. Dahl to name his nephew, described as his brother’s youngest son, as his sole beneficiary. He told him that his nephew’s name was Per Kare Jamt and that his nephew was about 60 years old with two children, and provided Mr. Dahl with his nephew’s telephone number and address.

Mr. Dahl prepared a draft Will in accordance with the Deceased’s instructions. At a subsequent meeting, the Deceased identified an error with respect to his nephew’s address. The Deceased then executed a final version of the Will in Mr. Dahl’s office.

After the Deceased’s death, a distant relative located the Will. She discovered that it bore certain handwritten redaction and additions, including a change to the executor and a change to his nephew’s address that had been missed in the revision made by Mr. Dahl. The Petitioner, Per Martin Jamt, also learned that he was possibly the sole beneficiary, named in the Will as Per Kare Jamt.

The Deceased’s Intentions

The Petitioner argued that the Will failed to carry out the Deceased’s intentions because of an error in his name arising from an accidental slip or omission, and had to be rectified. The Court agreed and found that the Deceased intended to leave his Estate to the Petitioner, that his Will failed to carry out that intention, and that it did so because of the Deceased’s accidental slip in confusing the Petitioner’s middle name.

In making these findings, the Court relied on extrinsic evidence. This included that the Petitioner was the only nephew named “Per”, and that while the Deceased had had a brother named Per Kare Jamt, that person had died long before the Will was made. Further, the Deceased had told Mr. Dahl that he wanted to benefit his brother’s youngest son, being the Petitioner, and the telephone number and address given to Mr. Dahl by the Deceased for the nephew were those of the Petitioner.

Framework for Applying Section 59

In rectifying the Will in Jamt Estate, the Court articulated the following principles for applying section 59:

1. Section 59, like section 58, is remedial in nature. It confers a broad discretion on the Court to rectify a Will that fails to carry out a will-maker’s intentions in certain prescribed circumstances (para. 42).
2. A section 59 analysis raises three questions (para. 45):
   1. What were the will-maker’s intentions with regard to the issue for which rectification is sought?
   2. Does the Will as written fail to carry out those intentions?
   3. Is that failure a consequence of one of the reasons specified in s. 59, namely:
      1. an error arising from an accidental slip or omission;
      2. a misunderstanding of the will-maker’s instructions; or
      3. a failure to carry out the will-maker’s instructions?

3. The same evidentiary approach as under section 58 applies under section 59, as set out in Hadley (Re), 2017 BCCA 311 (para. 46). The Court benefits from learning as much as possible about all that could illuminate the deceased’s state of mind, understanding, and intentions. This may include extrinsic evidence of events that occurred before, when, and after the document was created (para. 36).

Curing Deficiencies in the Deceased’s Will

In Jamt Estate, upon the Petitioner’s request, the Court also cured the deficiencies relating to the Deceased’s handwritten alterations under section 58, which were not signed or witnessed. The Court found that the alterations were authentic, and they reflected the Deceased’s deliberate, fixed and final intention.

A Path Forward

Jamt Estate provides welcome guidance for those dealing with or consulted about Wills that appear not to accomplish the intentions of the deceased person. While there have been a number of decisions commenting on section 58, prior to Jamt Estate, there had been relatively little interpretation of section 59. Jamt Estate provides a framework for how the provision is to be applied and the evidence relevant to the inquiry, and affirms the importance of identifying, and giving effect to, the intentions of the will-maker.

For further information or for assistance with your Estate matter, please contact a member of our Estates & Trusts Practice Group.