The recently reported case of Bach Estate (Re) is the first decision to rule on section 43 of the Wills, Estate and Succession Act (the “WESA”) and also epitomizes a recent trend in BC estate law: otherwise invalid testamentary documents or gifts can be “saved” where there is evidence of testamentary intent.
This trend has been seen in section 58 of the WESA, which allows a court to cure deficiencies in an otherwise invalid will where that will is found to encapsulate the testamentary intent of the deceased. This trend is also found in the wording of section 43 of the WESA which allows a court to declare that a gift to a witness of a will or to a spouse of a witness (which, prior to the WESA, was automatically void) is valid if it was the will-maker’s intention to make the gift to that person.
Otherwise invalid wills have been cured by BC courts under section 58 of the WESA in cases like Yaremkewich Estate (Re). Bach Estate represents the first ruling where a court has saved an otherwise invalid gift to a witness or witness’ spouse under section 43.
Facts of Bach Estate (Re)
The deceased, Terry Bach, passed away on September 10, 2014 – the evening before, on September 9, he signed a document (the “Will”) leaving his entire estate to his sister, Sharon Thibodeau. Sharon’s husband, Roger Thibodeau, was a witness to the Will.
Terry’s stepdaughter challenged the validity of the Will on the grounds of incapacity and challenged the gift to Sharon on the grounds that it was contrary to section 43(1) of the WESA.
43(1) Unless a court otherwise declares under subsection (4), a gift in a will is void if it is to
- A witness to the will-maker’s signature or to the spouse of that witness;
- A person signing the will by the will-maker’s direction, or the spouse of the person signing, or
- A person claiming under a person, other than the will-maker, referred to in paragraph (a) or (b)
The Will gifted Terry’s entire estate to Sharon, and Sharon’s husband was a witness to the Will. Prior to 2014, courts had no power to allow such gifts. However, with the WESA coming into force on Mar. 31 2014, courts now have discretion to “save” such gifts under section 43(4), which reads:
43(4) On application, the court may declare that a gift to a person referred to in subsection (1) is not void and is to take effect, if the court is satisfied that the will-maker intended to make the gift to the person even though the person or his or her spouse was a witness to the will.
The Court in Bach Estate found that the test for saving gifts to witnesses (or their spouses) under section 43(4) is similar to the test for curing an otherwise deficient will under section 58. The crucial question to be determined is whether the otherwise invalid gift (or will) encapsulates the true testamentary intentions of the deceased, despite the fact that it was made invalidly. Importantly, extrinsic evidence from outside of the document itself is admissible in making this determination.
In assessing all of the circumstances (including medical evidence of Terry’s capacity and third party evidence regarding his intent) the Court in Bach Estate found that there was “overwhelming” evidence that Terry did intend to leave his entire estate to his sister, and the gift was saved by section 43(4).
The Bach Estate ruling is the first judgement on s. 43 of the WESA, and confirms the effect of that provision, which is to save gifts to a witness of a will (or their spouse) where there is evidence of intent.
The case is further significant in that it represents the recent trend in BC estate law, which has conferred upon courts the discretion to cure an otherwise deficient will or a gift where it is evident that the will-maker intended to make the impugned disposition.
In litigating these matters, it is crucial for parties to gather convincing evidence that goes toward the intentions of the testator. Such evidence can be assembled from within the impugned instrument itself, or from the circumstances that surrounded the execution of the document. On applications to save deficient wills or gifts under ss. 43 or 58 of the WESA, the focal point will ultimately be the strength of the evidence presented, as it pertains to the true testamentary intent of the deceased.
 2017 BCSC 548
 SBC 2009, c. 13
 2015 BCSC 1124