In Re: Clarke Estate (2023 BCSC 103), the BC Supreme Court was tasked with assessing the validity of a handwritten will that did not comply with the requirements for validity as prescribed by the Wills, Estates and Succession Act (“WESA”).
Validity under WESA requires a will to be in writing, signed at the end by the will-maker in the presence of two or more witnesses who are present at the same time, and signed by two or more of the witnesses in the presence of the will-maker. Where a will does not comply with these requirements, the court may (on application by an interested party) make an order that the deficiencies be cured and the will be deemed fully effective, if it is satisfied that the document represents the testamentary intentions of the deceased person.
In Re: Clarke, the court was presented with two documents purporting to be wills, both of which were found in the deceased’s home. The first was prepared by a legal professional and dated December 22, 1994. It was properly witnessed and executed, leaving the residue of the estate to the deceased’s stepdaughter. The second was dated April 25, 2013. It was handwritten and had only one witness, and left the residue of the estate to the deceased’s brother.
In deciding that the handwritten will represented the fixed and final testamentary intentions of the deceased will-maker, the court summarized and reaffirmed the issues to be considered in applications of this kind, namely:
1. The onus in this matter is on the petitioner to prove, on a balance of probabilities, that:
a. the document is authentic; and
b. the document embodies the fixed and final, as opposed to irrevocable, testamentary intentions of the deceased.
2. The factors to take into account in determining whether the document contains the testamentary intentions of the deceased include:
a. the presence of the deceased's signature,
b. the deceased's handwriting,
c. witness signatures,
d. revocation of previous wills,
e. funeral arrangements,
f. specific bequests,
g. the title of the documentation,
h. such other factors as may be relevant given the context, and
3. The material time for determining the testamentary intentions can vary depending on the circumstances, but in many if not most cases the material time is when the document was prepared and executed.
Ultimately, this case is a good reminder that although a formally invalid will can in some cases be cured, it comes at a cost. The prudent approach is to ensure that your will is valid from the start so that the court need not be called on to intervene.
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This article is intended for information purposes only and should not be taken as the provision of legal advice. Grace C. Cleveland is a lawyer with the law firm of Cleveland Doan LLP and can be reached at (604)536-5002 or firstname.lastname@example.org.