As we indicated previously, when WESA comes into force on March 31, 2014, the courts will have discretion to accept for probate a document or record that does not meet the formal requirements for the execution of wills. BC courts have not had this discretion in the past. Pursuant to section 58 of WESA, the court may order that any “record, document or writing, or marking on a will or document” be fully effective as though it were a valid will, if the court is satisfied that it represents the testamentary intentions of the deceased. Electronic records are included in the definition of “record”. Bearing this in mind, a recent blog post by Hull & Hull LLP titled “Court Refuses to Accept Text Messages as a Will” is particularly interesting.
A Swedish newspaper reports that a man spent his last hours communicating his testamentary wishes via text message. A district court ruled that the text messages were valid as a will, but this decision was overturned on appeal. Swedish law professor Margatreta Brattström noted that the messages would have been valid as a will if they had been recorded with a pen. This begs the question: how would a BC court rule under WESA?
While we do not yet know how BC courts will interpret s. 58 of WESA, similar provisions in other Canadian jurisdictions shed light on the question. In Manitoba, for example, a document may be valid as though it were a will if it is “a deliberate or fixed and final expression of intention as to the disposal of his/her [the deceased’s] property on death”. You will recall that under WESA an electronic record may qualify. It follows that with facts similar to the Swedish case, there would be a strong argument that the text messages were the fixed and final expression of intention as to the disposal of property and should, therefore, be valid as though they were a will.
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