Where There Isn’t a Will,There May Be A Way

Curing Deficiencies and RectificationSections 58 and 59 of WESA

Presented by

Amy A. Mortimore and Gordon T. Behan

TLABC Seminar June 6, 2014

Introduction

• WESA Background

– BCLI Report

– The will-maker’s intentions

• Section 58 – Court order curing deficiencies

• Section 59 – Rectification of Will

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Section 58 Background

• Formal requirements for the execution of a Will

• Previously absolute, which can produce interesting results:

– Brown Estate – 1954 Ontario Surrogate Court

– Wozciehowiecz Estate – 1931 Alberta Court of Appeal

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Section 58 Background (cont’d)

• Statute of Frauds (17th century) required that Wills relating to real property be in writing

• Since 19th century, all Wills must be written and meet formal requirements

• Section 58 is intended to ensure will-maker’s intentions are fulfilled

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Section 59 Background

• Probate and construction, two separate functions

– Probate – proof of the validity of the Will

– Construction – interpretation of the Will

• Re Morris – a creative court

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Section 58 – The Dispensing Provision

• Very similar to Manitoba, New Brunswick, and Nova Scotia provisions

• Saskatchewan provision less broad

• Other approaches – Ohio

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Section 58 – The Dispensing Provision (cont’d)

• BC likely to follow Manitoba decisions

• This is what occurred in:

– Nova Scotia (see Sweeney Cunningham Estate v. Sweeney 2013 NSSC 299)

– New Brunswick (see Furlotte v. McAllister 2005 NBQB 310)

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George v. Daily 15 E.T.R (2d) 1

• 1997 Manitoba Court of Appeal

• “Formal requirements for the execution of a will are imposed by the Wills Act. Relief from literal compliance with those requirements is an idea whose time has come.” (para. 1)

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George v. Daily

• “…the purpose of remedial provisions is to overcome the hardship and injustice – the consequences of triumph of form over intent – which have often followed the literal application of the formal requirements found in will statutes.” (para. 58)

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George v. Daily – Facts

• Mr. Daily, age 85, met with accountant and said he wants to change his Will

• Accountant made notes of changes on a copy of the Will

• Effect of changes: residue left to charities, not his children

• Accountant wrote to Mr. Daily’s lawyer, setting out the changes to be made

• Accountant suggested lawyer have Mr. Daily obtain a medical letter before execution

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George v. Daily – Facts (cont’d)

• 10 days later, Mr. Daily met with lawyer and confirmed instructions

• Mr. Daily wanted to execute Will, but lawyer required medical letter first

• Mr. Daily died 2 months later, never having received the medical letter, and not having executed the new Will

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George v. Daily

• Question for determination: is the accountant’s letter Mr. Daily’s “Will”?

• Trial level: yes

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George v. Daily – Analysis

• Revisits earlier decisions, and a subsequent change in the Act

• Confirms that the Court has the power to recognize a document that does not comply with any of the requirements of the Act

• Confirms the Court has the power to recognize a third party document as the Will of a deceased person

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George v. Daily – Analysis (cont’d)

• Key discussion: purposes or functions of the formal requirements in the Wills Act

– Evidentiary

– Cautionary

– Channeling

– Protective

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George v. Daily – Analysis (cont’d)

EVIDENTIARY

•Courts are removed from the actual execution

•Reliable and permanent evidence of intention, genuineness and clarity of terms

•Signature at the end ensures authenticity

•Disinterested witnesses can later give reliable evidence if necessary

•Will-maker signing in front of witnesses provides evidence of intent

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George v. Daily – Analysis (cont’d)

CAUTIONARY

•To impress the finality and solemnity of the act

•Writing more formal than spoken words

•Signatures are the sign of formal acceptance

•Ceremonial in nature, underlines importance of act

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George v. Daily – Analysis (cont’d)

CHANNELING

•Results in a degree of uniformity of most Wills

•i.e. language, content, and organization

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George v. Daily – Analysis (cont’d)

PROTECTIVE

•May protect will-maker against fraud

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• Court of Appeal found accountant’s letter NOT a Will

• Requires a “deliberate or fixed and final expression of intention” (para. 65)

• Evidence insufficient to establish such an intention

George v. Daily – Result

George v. Daily – Evidence

• Indicated evidence could be improved by:

– oral evidence, especially where it is a third party document

– explanation for why there was no medical letter

– evidence Mr. Daily approved (or at least knew of) the accountant’s letter

– seeking to have the marked up Will recognized as the final Will

Section 58(1) – “record”

• S. 58 specifically includes electronic data

• Estate of Castro, 2013 Lorain County Probate Court, Probate Division, Case No 2013ES00140

Section 59 - Rectification

• Broader powers to correct:

– errors arising from accidental slip or omission

– misunderstanding of instructions

– failure to carry out instructions

Section 59 - Rectification

• Similar to wording in the English Act

• Re Segelman, [1996] Ch 171 provides guidance

– £8M estate

– 21 year trust for named needy family members and their issue (as set out in a schedule)

– Solicitor inserted second reference to issue in body of Will

– Question: were issue of named family members entitled to funds during lifetime of their parent?

Section 59 - Rectification

• Three considerations:

– what were the will-maker’s intentions?

– does the Will fail to carry out those intentions?

– was wording of Will result of (a) a clerical error or (b) failure to understand instructions given?

Section 59 - Rectification

• Extrinsic evidence is required to establish intentions

• Oral evidence of the solicitor given in Re Segelman

• Clerical error established where solicitor failed to turn his mind to effect of clause in body of Will when read with named persons “and their issue” in schedule

• Court ordered rectification

Conclusions

• Significant change, but not radical change

• Will-maker’s intentions paramount

• More important than ever to keep detailed notes

• Consider having client sign drafts or instructions

• Advise clients of potential effect of marking up executed Wills

• Litigation tsunami? No, a litigation wave.

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THANK YOU

These materials are necessarily of a general nature and do not take into consideration any specific matter, client or fact pattern.

Please direct inquiries or comments to:

Amy Mortimore Gordon BehanClark Wilson LLP Clark Wilson LLPT: 604.643.3177 T: 604.643.3141E: aam@cwilson.com E: gtb@cwilson.com