Introduction

The recent British Columbia Supreme Court decision in Yaremkewich Estate (Re) involved an application to cure defects in the formalities of a will being probated in British Columbia.  While this is not the first case to apply the curative provisions of section 58 of the Wills, Estates and Succession Act (“WESA”), due to the fact that this legislation has only been in force since March 31, 2014, the Court provided a detailed and informative analysis of the application of section 58.

Before her death, the deceased, Denise Lynn Bevan Yaremkewich (the “Deceased”), completed and executed a 3 page long pre-printed will template form titled “Last Will and Testament” (the “Will”).  The Will appoints executors, revokes all previous wills (although there is no evidence of any previous wills), sets out burial arrangements and directs certain expenses and taxes to be paid out of her estate.  It also provides a number of gifts and a bequest to a close friend for the care of the Deceased’s dog during the dog’s lifetime. 

The Will refers to three other documents.  The second document, titled “Bequests (Personal),” is a twelve-page, stapled, handwritten list of bequests of specific pieces of personal property to 19 beneficiaries, including friends, family and extended relationships.  The third document, titled “Charitable Bequests,” is a one-page, handwritten list distributing the remaining money from the estate to 12 named charities.  The fourth document, titled “Jake Bevan (the dog),” is three stapled, handwritten, double-sided pages of detailed instructions and descriptions of the Deceased’s dog’s likes and temperament. 

The Will was signed by the Deceased and by two witnesses.  However, the two witnesses stated that the Will was a blank template when they signed as witnesses and that there were no attached pages setting out bequests.  The witnesses also stated that they believed the Deceased had not signed the Will before they signed it and that they could not recall if the Deceased signed the Will at the same time as them. 

The Will and the three attachments were placed together in an envelope which was marked as the “Will of Denise Lynn Bevan Yaremkewich.”  The Will and the envelope were both dated with the same date as the witnesses signed the Will.  The Court was satisfied that the envelope and all four of the enclosed documents were in the Deceased’s handwriting.  Furthermore, the Court concluded that while it was unlikely that the Will and the three attachments were all completed on the date that the witnesses signed the Will, it was clear that the Deceased intended all the documents to operate together and it was likely that the Deceased completed all of the documents at the same time shortly after the witnesses signed the Will.

Analysis and Decision

Section 37 of WESA, which replaced sections 4 and 5 of the old Wills Act, states:

37(1) To be valid, a will must be

  1. in writing,
  2.  signed at its end by the will-maker, or the signature at the end must be acknowledged by the will-maker as his or hers, in the presence of 2 or more witnesses present at the same time, and
  3. signed by 2 or more of the witnesses in the presence of the will-maker.

On the evidence, the Court was satisfied that the Will did not comply with the formalities of WESA, as the Will was not validly witnessed.  Prior to WESA, this would have been the end of the analysis, and the Will would have been invalid.  However, section 58 of WESA contains a new provision which empowers a court to make an order curing deficiencies in the formalities set out in WESA.  Specifically, section 58(3) provides that:

58(3)  Even though the making, revocation, alteration or revival of a will does not comply with this Act, the court may, as the circumstances require, order that a record or document or writing or marking on a will or document be fully effective as though it had been made

  1. as the will or part of the will of the deceased person,
  2. as a revocation, alteration or revival of a will of the deceased person, or
  3. as the testamentary intention of the deceased person.

Based on its review of the legislation and the existing case law, the Court confirmed the following principles in the application of section 58:

  1. Section 58 of WESA can only be used to cure errors concerning formalities, and cannot cure substantive errors such as testamentary incapacity or undue influence;
  2. To apply section 58, the applicant must prove on the balance of probabilities that the record at issue is authentic and that it represents the testamentary intentions of the will-maker;
  3. The court can only apply section 58(3) if the document records a deliberate or fixed and final expression of intention, at the material time, as to the disposal of the deceased’s property on death;
  4. Since the wording in section 58(3) refers to “the will or part of the will,” it can be used to cure a defect with formal requirements to incorporate a document into a will (including the requirement that the document be in existence at the time the will is executed), if the document represents the testamentary intentions of the deceased; and
  5. Extrinsic evidence is admissible on the question of testamentary intent.

In this case, the Court found that the amount of detail in the documents, the consistency between the Will and the attachments, and the careful manner in which the documents were stored, mitigated in favour of finding that the Will and the two lists of bequests represented the Deceased’s testamentary intentions. The Court also found other evidence to be relevant in proving the testamentary intent of the Deceased, including: (a) that the Deceased was ill at the time she made the Will; (b) that the Deceased gave a copy of her Will (without its last page or the attachments) to one of the executors; (c) that the Deceased made statements to the witnesses which indicated that she was contemplating specific bequests at the time she arranged for witnesses to the Will; (d) that there were no changes or markings in the Will or the accompanying documents that would indicate that the documents were only drafts; (e) that the lists of bequests contemplate gifts on the Deceased’s death; and, (f) that the lists of bequests and the Will were likely created at approximately the same time. 

For these reasons, the Court ordered that the Will, the personal bequests list, and the charitable bequests list are fully effective as the Deceased’s will pursuant to section 58 of WESA.

With respect to the document in which the Deceased left instructions for the care of her dog, the Court held that it was not testamentary in nature, as the bequest for the dog’s care was included in the Will and not the attached document.

This case demonstrates both the risks of using an at home will kit and the scope of the curative provisions in section 58 of WESA.  Based on the Court’s analysis, as long as a document records a deliberate or fixed and final expression of intention, at the material time, as to the disposal of the deceased’s property on death, then any defects in the formality of the document can be cured and a court can order that the document is a valid will.  This can include defects in the execution of the document or defects in validly incorporating documents into a will.