WESA, the new estate legislation, contains a “dispensing power”, which allows a Court to order that a writing that does not meet the formal requirements of a Will is still effective as a Will. This morning, Gordon Behan and I applied to Court for an order that a letter written by the deceased on the day of his death be declared effective as his Will. The British Columbia Supreme Court granted that order.
This is noteworthy because the dispensing power (section 58 of WESA) is new to British Columbia. Our August 2014 issue of Your Estate Matters addressed section 58 generally. Despite being in effect since March 31, 2014, there are no published cases in British Columbia that address how and when the Court should exercise its dispensing power. As a result, we looked to other provinces with similar legislation. In particular, George v. Daily is a comprehensive Manitoba Court of Appeal decision that has been followed both in Nova Scotia and in New Brunswick.
The cases above indicate that the question to be answered is whether the writing expresses the fixed and final intention of the deceased to dispose of their assets after death. In our case today, the Court held that the letter did express those intentions.
As can be seen from today’s decision, this new power given to our BC Courts will allow the Court more flexibility to give effect to documents that truly express the deceased’s fixed intentions but do not comply with formal Wills requirements. As the Manitoba Court of Appeal said, “Relief from literal compliance with those requirements is an idea whose time has come.”