WESA CHANGES

INCLUDING PROBATE APPLICATIONS

& RECTIFICATIONS

Presented by: Andrew MacKay

Curative Power

Section 58 of the WESA

Court empowered to order that a record,

document, or writing be effective despite

deficiencies in execution, attestation, or

other aspects of compliance with the Act

Records, Document or

Writing that May be Cured

“Record” includes data that:

a) is recorded or stored electronically;

b) can be read by a person; and

c) is capable of reproduction in a visible form

Electronic data, provided it can be read

by humans in visual form

Requirements – s. 58(2)

Court may use curative power if the

record/document/writing represents:

a) testamentary intention;

b) intention to revoke, alter or revive a will or

testamentary disposition; or

c) intention to revoke, alter or revive a

testamentary disposition contained in a

document other than a will

Requirements – s. 58(2) (cont’d)

No threshold of compliance:

• No express witness requirement

• No express signature requirement

Focus is on finality and the degree of

connection of the document with deceased

Other Jurisdictions

Curative power already exits in:

5 provinces -- Manitoba; Saskatchewan; New

Brunswick Quebec; Prince Edward Island

all Australian states

WESA s. 58 most similar to s. 23 of Manitoba Act

and s. 37 of Saskatchewan Act

Curative power has been interpreted

conservatively in other jurisdictions

Applications Under Section 58

Court must be satisfied that

record/writing/document represents

deceased’s testamentary intentions

Two principle considerations:

• Finality

• Authenticity

Finality and Authenticity

(1) Finality

• Draft did not qualify – MB and SK

(2) Authenticity

• Accountant’s letter did not qualify -- MB

• Solicitor’s notes did not qualify -- SK

• Inscriptions on a will form in the deceased’s

handwriting were admitted -- SK

Restoration of Text

Rendered Illegible

Section 58(4)

Can be used if formally invalid alteration renders a word or provision illegible

Court may reinstate original text if the original text can be established by evidence

Young 2015 BCSC 182

BC referred to Manitoba CA: George v Daily (1997) 143 DLR (4th) 273

Look for authenticity of the record

Does the record reflect a testamentary intention (fixed and final distribution of property on death, but need not be “irrevocable”)

The greater the non-compliance the better the evidence must be in order to succeed

Young

June 17 document contemplated her

death and distribution of her property

Sounds final, it was signed, a copy

delivered to friend to carry out=valid will

Oct 15 document is non-binding wishes for

some earlier gifts

Unsigned, reads like a letter, not very

formal sounding=not valid will

Woolrich 2014 unreported

V140043

Notebook entry written in style of suicide

note addressed to beneficiary, accepted

as will

Evidence of relationship with beneficiary

and circumstances of death

Evidence of texts/emails and phone

messages just before death

Things s. 58 Cannot Cure

Section 58 addresses only formal validity

Cannot be used to uphold will that is

substantively invalid

Lack of testamentary capacity

Improper delegation of testamentary authority

Effects on Practice

Will drafter should preserve correspondence with will-maker E-mails Instructions, accountant’s plans, memos Draft documents Ask will maker to sign instructions confirming intention that

instructions are provisional will

Search for testamentary instruments is broader: informal documents of a testamentary nature computer and back-up storage media Keep envelopes, blank home-made wills forms to provide

context of a writing

Effects on Practice (con’t)

Warn will-makers about the dangers of later unintentional alterations or revocations

Will drafters should confirm with express language that will maker does not intend for later informal documents or statements to have an effect on their will

Wills Variation - WESA

What’s the same: (despite BCLI Report:)

Step children are still excluded

Adult children are still included

No variation of intestate distribution

No anti-avoidance rule

Automatic right to appeal

“Will” definition in Section 1 includes any other testamentary disposition other than designator

Wills Variation (con’t)

What’s changed: 180 days from issuance of grant to make a

claim (not 6 months)

210 days from issuance to serve Writ/NOCC

No estate distribution by PR without consent or court order for 210 days after issuance of representation grant

CPL is optional

Court can create a trust

Section 59 of the WESA

Expands court’s power to rectify a will to coincide with testator’s intent

Rectification obtainable at either the probate or construction stage

Modelling on s.20 of English Administration of Justice Act 1982

When Can a Will be

Rectified Under s.59

If the court determines that:

the will fails to carry out the testator’s intention because of an error; and

the effort is of a nature listed in s.59(1)

Only Inadvertent Errors

Are Rectifiable

Genesis of s.59 of WESA indicates errors in wills that are capable to rectification stem from, inadvertence, regardless of who made them

s.59 does not cover situations where will-maker knows and approves of language in the will but misunderstands its effect

What Kinds of Errors

are Rectifiable?

Accidental slip or omission: s.59(1)(a)

Misunderstanding of the will-maker’s instructions: s.59(1)(b)

Failure to carry out the will-maker’s instructions: s.59(1)(c)

Accidental Slip or

Omission: s.59(1)(a)

Could be made by anyone involved in process of generating will, e.g.:

will-maker

drafter

transcriber

“Slip” covers inadvertent inclusion or omission

Misunderstanding of Will-

maker’s Instructions:s.59(1)(b)

Error of will drafter

Does not cover misunderstanding by will-maker of effect of language used in the will

Possible Example of

Misunderstanding of Will-maker’s

Instructions: s.59(1)(b)

Client gives instruction for division of estate “equally amongst my family.” Client is survived by three of four children and two children of the deceased child

Drafter assumes client means the ¼ share of the deceased child would be divided between the two grandchildren (usual per stirpesdivision)

Client actually wanted all five survivors to share equally (per capita distribution)

Further Possible Example of

Misunderstanding of Will-maker’s

Instructions: s.59(1)(b)

Clients wants to give a “farm” to a named beneficiary

Drafter assumes “farm” means an entire property with several operations carried out from it

Client actually meant to give only the farmhouse and some adjacent land, not the entire farm premises (see Sprackling v. Sprackling [2008] EWCH 2696(Ch.))

Failure to Carryout Will-maker’s

Instructions: s.59(1)(c)

Will contradicts client’s instructions, or

(Example of different kind of situation) –Will contradicts intent clearly evident from instructions given but incorporates will-maker’s inappropriate expression of the instructions (see Sprackling v. Sprackling)

Legal Analysis Under s.59(1)

B.C. court may apply test similar to one used in interpreting s.20 of English Administration of Justice Act 1982

Leading case Re Segelman, [1996] Ch. D.171 enunciates 3-part test for determining if rectification is possible under the section

Three-part Test

in Re Segelman

What did the will-maker intend by the terms in question?

Is the will expressed in a way that fails to carry out that intention?

Is the will expressed in this way because of an error of a kind that may be rectified under the statute?

Evidence in Application

for Rectification of Will

Extrinsic evidence admissible to establish circumstances justifying rectification: s.59(2)

Admissible extrinsic evidence could include: statements of will-maker

will instructions

draft wills and changes noted on them

Limitation Period

for Rectification

180 days from date of representation grant: s.59(3)

Court may grant leave to apply after expiration of limitation period: s.59(3)

If leave is given for late application, personal representatives are not liable for having distributed in reasonable reliance on will as written if distribution took place after the limitation period and before notice of the application for rectification: s.59(4)

Lau 2014 BCSC 2384

Rectification of corporate articles based on Business Corporations Act and equitable relief- note WESA is statute/ complete code

Opposed by CRA- $17million drafting error

No mechanism to set redemption amount of shares issued as stock dividend

Standard of proof is balance of probabilities: McDougall 2008 SCC 53

Evidence of shareholders, directors, solicitor and contemporaneous report

Beware of inconsistent evidence or pleadings for income tax or other purpose- may make rectification impossible

Practice Point

Important to preserve evidence of will-maker’s testamentary wishes, e.g.

Will instructions

Notes on draft wills

Make memos, reporting letters, handwritten notes as contemporaneous record of true intention in case of error

Thank you