Application of WESA: Date of Death or Date of Will?


Since March 31, 2014, the Wills, Estates and Succession Act (“WESA”) has been the applicable legislation regarding wills and estates matters in British Columbia. WESA gives the courts the power to “cure” deficiencies in Wills that would formerly have been invalid for failure to comply with the required formalities under the less forgiving Wills Act (repealed by WESA).

Can the courts “cure” a deficient Will made prior to the WESA regime? The general application of WESA is that it applies if the death of the person whose Will and/estate is at issue occurred on or after March 31, 2014. As such, the courts do have the power to “cure” a deficient Will as long as the will-maker passed away after WESA came into effect.

The recent decision in British Columbia v. Sheaffer (“Sheaffer”) is an example of the Court drawing a hard line in terms of the March 31, 2014 cut-off date for the application of WESA. The dispute arose because of a second unsigned will of the deceased that differed from the original, which was properly executed. The question of which legislation was applicable is important because, under the Wills Act, the second will was insufficiently executed and therefore invalid. On the other hand, under WESA, the Courts would have the authority to accept a document despite a lack of the traditional formalities, if the Court is satisfied that the document represents the will-maker’s true intentions. In this case, the will-maker passed away in 2011 so the Court applied the Wills Act and found the second will to be invalid.

The Defendant argued, among other things, that the March 31, 2014 cut-off date is arbitrary and fundamentally unfair, and it violates his Charter rights. The argument failed and the Court found that the transitional sections of WESA and applicable date are a practical necessity. The Court does not have discretion to stray from the strict imposition of the transitional structure, specifically the March 31, 2014 cut-off.

The decision in Sheaffer forms a guideline for litigants hoping to find relief under the curative provisions of WESA. The courts are not likely to entertain arguments under WESA unless the will-maker passed away after March 31, 2014. The costs of the litigation may form another deterrent for litigants from improperly pursuing a matter under WESA. Typically, both parties’ costs in estate matters are awarded out of the estate when the litigation was brought because of the will-maker’s conduct. However, litigants that force this issue may end up paying their own costs and the costs incurred by the estate, as was the case in Sheaffer.

Thank you to Elina Hartshorne for assisting with this blog post.