This article was originally published by The Lawyer’s Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc.
Hubschi Estate (Re) (CanLII), <http://canlii.ca/t/j3n8j>
“Get a will made out at some point.”
In Hubschi Estate (Re) 2019 BCSC 2040, these words were typed in a document found on the deceased’s home computer, followed by a brief description of how his assets were to be split among his siblings. The British Columbia Supreme Court was asked whether this document could be “cured” and declared as the deceased’s will even if it did not meet the formal requirements under the Wills, Estate and Succession Act, SBC 2009, c 13 (WESA).
When the deceased was born to a young mother, he was placed into the care of the Children’s Aid Society. At the age of three he moved to a foster home, where he remained until adulthood. His foster parents had five children of their own, but the deceased was treated equally as their own. Although he was never adopted, the siblings acted as a family and called each other brothers and sisters even after the parents died.
At the age of 56 the deceased discovered “medical problems” in his legs for which surgery was performed. He had post-surgery complications and he died twenty-two days after being discharged from the hospital. He had never married and had no children. One of his foster siblings searched the deceased’s home for a will. He could not find one. However, on the deceased’s computer was a document titled “Budget for 2017”. In that document was written:
“Get a will made out at some point. A 5–way assets split for remaining brother and sisters. Greg, Annette or Trevor as executor.”
Complicating matters was the fact that if the document was not recognized as a will, the deceased would die intestate, with his blood relatives (family of his birth mother, who lived in Switzerland, and with whom he had no relationship and had never met) would inherit his $175,000 estate.
Section 58 of WESA allows the court to make an order that a “record, document or writing or marking on a will or document” represents the testamentary intentions of a deceased person, even though the making of a will does not comply with WESA. The court may, as the circumstances require, order that the record or document or writing be fully effective as though it had been made as part of the deceased’s will.
The overarching question in this case was whether the document on the computer could be saved or cured by section 58 and declared as the deceased will, despite not meeting the formal will requirements under WESA.
Justice Armstrong noted that he would have to be satisfied on a balance of probabilities that the document or record represented the deceased’s “full and final testamentary intentions” and could be saved by section 58.
Justice Armstrong relied on Hadley Estate (Re) 2017 BCCA 311 which discusses the underlying purpose of section 58. That case observed that prior to WESA, British Columbia was a “strict compliance” jurisdiction. However, the need for “strict compliance” with the formal requirements sometimes led to a will-maker’s testamentary intentions “being defeated for no good reason.” Section 58 was made in response to this. It is remedial in nature and confers a broad discretion on the court. However, it cannot be used to “uphold a will that is substantively invalid, it permits the court to cure issues of formal invalidity in prescribed circumstances.”
The party seeking an order under section 58 must demonstrate on a balance of probabilities that 1) the testamentary document is authentic; and 2) the testamentary document contains the full, final and fixed intention of the will-maker.
In Hadley the record in question were notes made by the the deceased in a journal entry. The trial court and Court of Appeal held that these were not her final testamentary intentions but were rather “notes only to herself”. Armstrong J. also looked at other BC cases, including one where a document was found pinned to a bulletin board, one with a half filled out “Make Your Own Will” document, and an Australian case where an unsent text message found on a phone was considered sufficient to represent the deceased’s testamentary intention. Each decision turned on the particular facts of the case.
Armstrong J. observed that the document in this case was rational on its face, and in light of the evidence, the beneficiaries were exactly those expected. The deceased had a “close attachment to all members of [his foster family] and considered them, as they did him, siblings in this tight knit family relationship.” It was also significant that when the foster mother died, she gave an equal share to the deceased as she did her five natural children.
Further, there was no evidence that the deceased had ever created a will in the past. The court was satisfied that the computer belonged to the deceased and that the document was his creation.
The “history” on the computer showed that the deceased had reviewed the words in the document on the morning of the day he died. That supported the inference that the document reflected his wishes on the day of his death. At that point he was in pain and homebound. There was no opportunity for him to retain a lawyer and incorporate his testamentary intentions into a will.
Although the words in the document contemplated the preparation of a formal will at some time in the future, Armstrong J. concluded that the deceased’s testamentary intentions were reflected at the time he created the computer entry and when he reviewed the document on the day he died.
Armstrong J. concluded that although the words were non-compliant with the will provisions in WESA, it was the deceased’s testamentary intention that his estate should be divided into a five-way split for his remaining brother and sisters. An order was granted that the document prepared was “fully effective” and that probate be granted.
This case highlights the difference between provinces with strict compliance legislation (like Ontario) and the provinces without. Should this case have happened in Ontario, the document would not have met the formal requirements under the Succession Law Reform Act, RSO 1990 c S 26 and the deceased would have died intestate. Another reminder to make sure your clients (and you) have a valid will in place.
 Re Hubschi Estate, 2019 BCSC 2040 at para 29.
 Skopyk Estate, 2017 BCSC 2335
 Poulk Estate, 2018 BCSC 1321.
 Nichol v Nichol & Anor,  QSC 220 (Queensland).
 Re Hubschi Estate, 2019 BCSC 2040 at para 40.
 Re Hubschi Estate, 2019 BCSC 2040 at para 50.