This document summarizes sections 58 and 59 of the Wills, Estates and Succession Act (WESA) in British Columbia, which allow courts to cure deficiencies in wills and rectify errors. Section 58 allows courts to dispense with formal execution requirements if the deceased's intentions are clear. Section 59 gives courts broader powers to correct errors in wills due to accidental slips, misunderstandings, or failures to carry out instructions. The document discusses relevant case law, including George v. Daily, which confirmed courts' powers to recognize non-compliant documents as wills. It concludes that WESA significantly changes but does not radically alter previous law, emphasizing determining testators' intentions over strict compliance with

1. Where There Isn’t a Will,
There May Be A Way
Curing Deficiencies and Rectification
Sections 58 and 59 of WESA
Presented by
Amy A. Mortimore and Gordon T. Behan
TLABC Seminar June 6, 2014

2. 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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3. 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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4. 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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5. 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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6. 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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7. 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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8. 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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9. 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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10. 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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11. 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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12. George v. Daily
• Question for determination: is the accountant’s letter
Mr. Daily’s “Will”?
• Trial level: yes
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13. 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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14. 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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15. 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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16. 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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17. 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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18. George v. Daily – Analysis (cont’d)
PROTECTIVE
•May protect will-maker against fraud
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19. • 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

20. 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

21. Section 58(1) – “record”
• S. 58 specifically includes electronic data
• Estate of Castro, 2013 Lorain County Probate Court,
Probate Division, Case No 2013ES00140

22. Section 59 - Rectification
• Broader powers to correct:
– errors arising from accidental slip or omission
– misunderstanding of instructions
– failure to carry out instructions

23. 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?

24. 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?

25. 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

26. 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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27. 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 Behan
Clark Wilson LLP Clark Wilson LLP
T: 604.643.3177 T: 604.643.3141
E: aam@cwilson.com E: gtb@cwilson.com