Presented to the Estate Planning Council on February 18, 2015 by Andrew MacKay LL.B. - Alexander Holbern

1. WESA CHANGES
INCLUDING PROBATE APPLICATIONS
& RECTIFICATIONS
Presented by: Andrew MacKay

2. 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

3. 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

4. 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

5. 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

6. 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

7. Applications Under Section 58
 Court must be satisfied that
record/writing/document represents
deceased’s testamentary intentions
 Two principle considerations:
• Finality
• Authenticity

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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

14. 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

15. 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

16. 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

17. 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

18. 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

19. 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)

20. 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

21. 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)

22. 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

23. 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

24. 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 stirpes
division)
 Client actually wanted all five survivors to
share equally (per capita distribution)

25. 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.))

26. 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)

27. 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

28. 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?

29. 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

30. 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)

31. 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

32. 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

33. Thank you