Does the Court Have Power to Cure a Defective Will?


The Wills, Estates and Succession Act (“WESA”) implements a variety of changes. One of the most significant changes is to empower 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.

There have been a few reported cases of the Court’s curative power under Section 58 of WESA. The most recent judgment on this issue was just released on June 30, 2015.

In Re Yaremkewich Estate, the Deceased died leaving documents that did not comply with the statutory execution requirements. Prior to her death, the Deceased executed a pre-printed will template form titled “Last Will and Testament” (the “Template”). The Deceased filled out the Template by appointing executors, setting out burial arrangements, directing certain expenses and taxes to be paid from her estate, and providing a number of gifts to relatives, friends and charities.

She also referred to three other documents in the Template by directing the readers to “see attached instructions” and “see attached for other bequests”.  She left the Template and the three documents in an unsealed envelope.  Two of the documents were handwritten lists of bequests. The third document was care instructions for her dog.

The Template was signed by two witnesses; however, the two witnesses testified that the Template was blank and there were no attached pages when they signed as witnesses. One of the named executors applied for an Order that all of the noncompliant documents or some portion of them be treated as a fully effective Will pursuant to Section 58 of WESA.

After hearing all of the evidence, the Court found that the Template and the two documents detailing lists of bequests were fully effective as the Will of the Deceased. In making that decision, the Court emphasized that the applicant in a Section 58 application must prove on the balance of probabilities that the record at issue is authentic and that it represents the testamentary intentions of the will-maker.

The Court further stated that the types of evidence that are relevant to prove testamentary intent will vary from case to case. In this particular case, the contents, the detailed wording of the Template and its attachments, and the circumstances in which they were found militate in favour of finding that the Template and two of the accompanying documents, the bequest lists, represent the Deceased’s testamentary intention. This means that they represent her fixed and final expression of intention as to the disposal of her property on death.

It is important to note that even though a defective Will may be cured by the Court, it is expensive to go through the court application process. The best practice is to engage an estate planning professional to have the Will properly prepared and executed.