In October 2009, the Wills, Estates and Succession Act (WESA) was passed, including Section 58, “Court order curing deficiencies.” This section of the WESA vested BC courts with the curative power to validate documents and records that do not comply with the formal requirements to validate a will.The passage of this section indicates a shift in BC towards a substantial compliance framework, wherein courts can read in the testator's true intentions over the last remaining valid will in certain circumstances.
A trio of decisions in recent years have highlighted the extent of Section 58's power. The first decision, Hadley Estate (Re), 2017 BCCA 311, provides guidance on the scope of the Court's application of Section 58. The deceased, Eleanor Hadley, had been a community activist during her life and died with no living immediate family members. Hadley had made a 2008 Will. In 2014, after a health scare, Hadley had made a journal entry to which she referred as her “last Will.” In this signed document, she changed the disposition to the heirs of her estate and indicated new intentions for the final disposal of her property. Hadley was secretive about the existence of her 2014 “Will,” but expressed a desire to make a new will and for one of her beneficiaries to find the locker containing the journal.
At first instance, the trial judge held that, on a preponderance of the evidence, the 2014 Will did not represent a “deliberate and final expression of Hadley's testamentary intentions.” The judge considered extrinsic evidence, including the fact that Hadley's 2014 Will did not revoke or mention the existence of the 2008 Will or any other will. Hadley also did not provide any explanation as to the change in her testamentary intentions. Finally, she was private about the 2014 Will's existence, leading the judge to infer that these were merely notes to herself. Hadley did, however, write under her 2008 Will her intention to prepare a new will.
On appeal, the appellants argued that the trial judge considered too wide a scope of extrinsic evidence when conducting her Section 58 inquiry. The WESA does not indicate the scope of admissible extrinsic evidence for Section 58 arguments. In her reasons in Hadley, the Honourable Justice Dickson clearly articulated that the Court of Appeal's Section 58 mandate is to “determine, on a balance of probabilities, whether a noncompliant document embodies the deceased's testamentary intentions at whatever time is material.” Dickson J argued that, since the person most apt to testify to her intentions was the deceased, the Court needed to rely on as much extrinsic evidence as possible to illuminate the situation.
Justice Dickson also found that the trial judge, based on the narrow standard of review, made no discernable palpable or overriding error in fact or law. According to Dickson J, the trial judge carefully conducted a Section 58 analysis, finding that the 2014 Will did not meet the evidentiary burden. The judge determined that Hadley was aware of the steps necessary to validate a new will, and that the contents of her 2014 journal entry were inconsistent with the note she added to her 2008 Will indicating her desire to make a new will. Thus, Justice Dickson affirmed that the 2014 Will could not be “cured” under Section 58 of the WESA.
Hadley demarcated the boundaries within which a Court can validate a deficient will, even if the document in question indicates the testator's last Will and Testament. When conducting Section 58 inquiries, the Court relies on all relevant extrinsic evidence, including the decedent's behaviour in order to make inferences. Section 58 is not, as Hadley shows, a catch-all for individuals to avoid properly validating their wills. While the WESA moved British Columbia into a substantial compliance jurisdiction, it did not vest the Court with an unmitigated power.
The second decision, Hubschi Estate, 2019 BCSC 2040, concerns the estate of Beat George Hubschi. Hubschi was given up for adoption by his mother when he was born and raised under a foster care agreement by Mary and Jack Stack alongside five adoptive siblings. Hubschi did not have any children or a surviving spouse. After Hubschi died, one of his adoptive siblings, Gregory Stack, searched his home for a will. He was unable to locate it. Instead, he found several documents indicating Hubschi's intention to prepare a will, as well as the intention to split his assets amongst his remaining siblings and to appoint Stack as the executor of his estate. Section 3(2)(b) of the WESA states that “a pre-adoption parent of the child is not entitled to the estate of the child except through the will of the child.” Because Hubschi was never formally adopted by the Stacks, his case was unique.
Hubschi's birth mother had predeceased him, though through a search agent, counsel for Stack was able to find Hubschi's biological aunt and cousins residing in Switzerland, with whom Hubschi had never met nor had contact. Rather than let Hubschi's estate pass on intestacy and allow his assets to be transferred to strangers, the Court held that Hubschi's digital record, though not meeting formal statutory requirements, clearly expressed his testamentary intentions to transfer his estate to his adoptive family.
Writing for the Court, the Honourable Justice Armstrong all the relevant facts to Hubschi's case: evidence he had been considered a natural son by his foster parents; that he had received an equal division of his foster mother's estate upon her death; his ongoing close relationship with his adoptive siblings until his death; and the fact that he had written the document stating his intention to prepare a will on the day he died. Justice Armstrong cited Hadley Estate (Re) when he noted WESA and BC's shift to a substantial compliance jurisdiction.
The third case, Jacobson Estate (Re), 2020 BCSC 1280, concerns Section 56(2)(a) of the WESA as it relates to Section 58. Section 56(2)(a) states that intentions in testators' wills for gifts to spouses who cease to be spouses before the will-maker's death are automatically revoked unless the decedent takes steps to execute a new will. Section 58 provides a remedy for this procedural element. The deceased, Helga Eileen Jacobson, had a “marriage-like” relationship with Naida Hyde for 30 years before separating. Jacobson had no heirs and had provided in a 2014 Will that Hyde would be the sole beneficiary of her estate. Jacobson was unaware of the extent of Section 56(2)(a)'s effect, essentially revoking Hyde's claim to her estate, though had made her intentions to leave her property to Hyde very clear to both her lawyers and friends. When Jacobson died, the executor of her will sought an order from the Court under Section 58(2)(b) of the WESA to maintain Jacobson's intentions for Hyde to inherit.
The Supreme Court of British Columba held on the evidence presented before it that Jacobson had met the evidentiary burden required by Section 58(2)(b) to rule the 2014 Will's terms valid and admit the Will to probate. While Jacobson had not taken the necessary steps to execute a new will transferring her assets to Hyde, the Court ruled that, had she been aware of Section 56(2)(a)'s repercussions, she would have done so.
In her judgment, the Honourable Justice Tucker noted, “The purpose of s. 58 is to ensure that discernible testamentary intentions are not thwarted “for no good reason” by a failure to comply with statutory requirements. Declaring the terms set out in the Will, in their entirety, effective as the deceased's will as at the time of her death accomplishes exactly that.” Justice Tucker also stressed in her judgment that the enactment of the WESA “marked British Columbia's move from a “strict compliance” jurisdiction to one with a legislative focus on testamentary intention,” with Section 58 being a key element of the Court's substantial compliance framework. Section 58 is sure to continue to evolve with the jurisprudence, providing continued guidance on what can and cannot be cured by the Court. It is evident from the provision's wording, however, that it is arguably the broadest existing validating provision in Canadian provincial succession legislation.