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Curing Deficiencies in Wills – Contrasting British Columbia and Alberta

In previous blog posts dated February 28 and May 27, we suggested that when the Wills, Estates and Succession Act (“WESA”) came into force, the legal landscape had changed and interesting court cases would follow.  One such change to the landscape is section 58 of WESA, which allows the Court to cure deficiencies in Wills.  If a document does not comply with the formal requirements for a Will, it may nonetheless be declared to have the legal effect of a valid Will.  To date, there have not been any British Columbia cases decided under section 58.

Before WESA came into force, Alberta’s updated wills and estates legislation came into force.  It contains a similar (but not the same) provision to section 58 of WESA.  A recent Alberta decision set out how the Alberta legislation is to be interpreted.  The decision serves as a contrast to how we predict the Court will interpret the British Columbia legislation.

In the Woods Estate decision, the deceased passed away suddenly.  A lawyer had attended the deceased’s home and took instructions for the preparation of a Will by filling out a wills questionnaire.  The questionnaire contained information about how the deceased wished her assets to pass on death.  Before a Will was drafted by the lawyer and executed by the deceased, the deceased died. The Alberta Court held that, indeed, the questionnaire contained the deceased’s intentions regarding her estate.  If a formal Will had been prepared, it would have contained the essential points as reflected in the questionnaire.  Nevertheless, based on an interpretation of the Alberta legislation, the Court held that because the questionnaire did not contain the signature of the deceased, it could not be admitted as a Will.  The judge appeared somewhat troubled by the decision, ending the judgment by stating, “…the Alberta legislature elected not to follow that recommendation [a broader curative power] when enacting the Act.  That is a policy decision upon which I make no comment.”

The British Columbia legislature made a different election than the Alberta legislature.  Section 58 of WESA includes the broader curative power that was contemplated and rejected in Alberta.  A document need not necessarily be signed by the deceased to be declared valid as a Will pursuant to section 58 of WESA.  If the Courts interpret section 58 as we expect that they will, decisions such as Woods Estate may be avoided in British Columbia.