As I wrote in an earlier blog, section 58 of WESA now gives the Court the power to order that a document that does not meet the formal requirements of a Will is nevertheless effective as a Will. This power is called a “dispensing power”. Last week, the Court exercised this dispensing power again, but on very different facts from those in our earlier blog. In the latest decision (the Estate of Young), there was in fact a properly executed Will, which was not in question in the application. However, there were also two separate documents which could arguably be seen as testamentary in nature. The Executor properly sought directions from the Court. In the Estate of Young decision, the Court found that only one of the documents met the necessary threshold to be fully effective as though it was part of the Will. The second document did not meet the threshold and, accordingly, had no effect.
From the two cases decided to date under WESA, we can take the following lessons:
- The starting point is the George v. Daily decision from the Manitoba Court of Appeal. This is not surprising. Manitoba Courts have had a similar dispensing power since the 1990s. The Manitoba Court of Appeal wrote a comprehensive decision tracing the reasons that Wills legislation has traditionally required certain formalities be met, considering similar legislation in Australia (where it has been in place since the 1970s), and identifying the threshold that must be met in order for a document to be effective as a Will. Other Canadian provinces have used George v. Daily as a starting point when their legislatures gave a dispensing power to their Courts.
- The key question in BC is the same as in Manitoba: whether the document expresses the deceased’s “deliberate or fixed and final expression of intention as to the disposal of his/her property on death”.
- The concern that the dispensing provision will become a “rubber stamping” by the Courts of non-testamentary documents to be recognized as Wills is met with the Court’s careful review of the facts and the law. In fact, in the second decision, the Court held that one of the documents did not have testamentary effect.
- Each application under section 58 will turn on the unique facts.
- The burden of proof on such an application is the civil standard (balance of probabilities), as opposed to the higher standard in criminal law (beyond a reasonable doubt). This finding is consistent with the British Columbia Law Institute recommendation in its report “Wills, Estates and Succession: A Modern Legal Framework” Note that this differs from certain of the statutes in Australia, which require that the higher, criminal standard be met in order for a document to be effective as a Will.
- The existence of a signature on the document is a compelling factor. It not only helps to establish authenticity of a document, but signing a document demonstrates approval of the contents and finality of intention.
In the Estate of Young, the Court also noted that section 58 may be used only to cure deficiencies in the execution of the document; it is not used to cure testamentary incapacity or undue influence.
I expect that we will see further applications under section 58 as we approach the first anniversary of WESA. I am aware that a few of my colleagues in the Estate bar are currently preparing such applications, and am interested in seeing what unique to BC nuances develop in this fascinating new power provided to our Courts. Stay tuned…