Testamentary Intent: Upholding Informal Wills in British Columbia under Section 58 of WESA
Introduction
Imagine finding an old grocery list written by your late father, which reveals his wish for someone to inherit his cherished watch. Although this list lacks the formal signatures and witnesses typically required for a valid will, British Columbia law provides ways to address such situations.
Under Section 58 of the Wills, Estates and Succession Act (WESA), the court has the authority to recognize certain informal documents as valid wills, even if they do not meet all the formal requirements.
This is possible as long as the documents clearly express the person's true intentions. This article will explain how Section 58 operates, the legal standards that courts apply, important court cases in British Columbia, and practical advice for those making wills.
What Section 58 of WESA Says
Section 58(3) provides courts with the power to declare a document effective as a will, even if it fails to meet BC’s usual formalities:
“Even though the making, revocation, alteration or revival of a will does not comply with this Act, the court may, as the circumstances require, order that a record or document or writing or marking on a will or document be fully effective as though it had been made”
as the will or part of the will of the deceased person,
as a revocation, alteration or revival of a will of the deceased person, or
as the testamentary intention of the deceased person
This effective remedy ensures that people's true intentions in their wills are not undermined by minor technical errors. Meaning that, Informal wills can be validated if supported by evidence demonstrating the testamentor's intention on the balance of probabilities.
Who Can Bring a Claim?
People who believe they have a stake in the estate, such as beneficiaries, spouses, children, or creditors, can apply to validate an informal document regarding the deceased's wishes. Although executors typically handle Section 58 applications, others may also be involved.
It is crucial to locate all possible written documents as early as possible. If a document indicates how the deceased intended to distribute their estate, it may be accepted.
Formal Requirements for a Valid Will
Ordinarily, a valid will in BC must:
Be in writing and outline how the estate is to be distributed
Be signed by the testator at the end
Be witnessed by two people who also sign in the testator’s presence
If any of these elements are missing, the will is technically invalid; unless Section 58 cures the defect.
How Section 58 Cures Deficiencies
Section 58 of WESA gives courts the flexibility to honour a person’s true final wishes, even when those wishes are recorded outside of a formally executed will. However, this curative power is only applied when two key elements are satisfied: authenticity and testamentary intent.
Authenticity: Is the Document of the Deceased?
The first step in any Section 58 analysis is determining whether the document in question was actually created by the deceased. Courts look at several indicators to assess this:
Handwriting comparisons
Where and how the document was discovered
Internal details, such as references to family members, gifts, or funeral wishes
These details help the court establish that the document wasn’t forged, altered, or mistakenly attributed to the deceased.
Testamentary Intent: Were These Final Instructions?
Once authenticity is established, the focus shifts to whether the document reflects the testator’s fixed and final intentions about their estate.
A prominent example is the case of Re Young Estate, 2015 BCSC 182. In this instance, the court upheld a handwritten note that detailed specific personal gifts, even though it was not formally attached to a witnessed will. The note demonstrated clear intent and finality, and the court accepted it under Section 58 after confirming its authenticity and content.
To determine whether a document reflects testamentary intent, the court considers:
Language suggesting finality and deliberation
Any statements revoking prior wills
Mention of specific gifts or executors
If the court is satisfied, on a balance of probabilities, that both elements are met, it may declare the document fully or partially effective as a valid will.
Looking Beyond the Document: Extrinsic Evidence Matters
The curative power of Section 58 extends beyond the document itself. In the case of Re Hadley Estate, 2017 BCCA 311, the BC Court of Appeal reaffirmed that extrinsic evidence, such as emails, witness statements, and medical records, can be used to determine whether a non-compliant document reflects a person’s final testamentary intent.
Although the court ultimately declined to validate the handwritten journal entry at issue, it reaffirmed that the Section 58 inquiry is fact-specific and may involve a wide range of contextual evidence. This includes not only what the document says but also how the testator treated it and what they communicated to others about it.
In summary, the courts prioritize intent over perfection. If the writing clearly demonstrates the testator’s genuine and settled intention to distribute their estate, Section 58 empowers the court to validate it, even when formal requirements are missing.
Practical Tips for Will-Makers
Use a professional will-drafting service to ensure full compliance with WESA.
Label informal writings clearly (e.g., “DRAFT—Not a Will”) to avoid accidental probate disputes.
Avoid writing on or marking up your original will without legal advice.
Notify your executor about any secondary writings or digital records that reflect your wishes.
For more information, here is a guide on drafting wills:
https://www.parrbusinesslaw.com/blog/create-a-will-in-british-columbia
Frequently Asked Questions
What types of documents can Section 58 validate?
Any written record, whether handwritten, typed, or digital, can be validated if it meets the requirements for authenticity and testamentary intent.
Can emails or text messages qualify as wills?
Yes. Courts have accepted emails and digital files into probate as long as they clearly outline the deceased's final wishes.
Can extrinsic evidence be used under Section 58?
Absolutely. Courts routinely accept extrinsic evidence, such as medical notes, family testimony, and correspondence, to help determine whether an informal document reflects the deceased's intent.
Does Section 58 address mental capacity or undue influence?
No. Section 58 only addresses formal defects. Issues related to capacity and undue influence must be addressed under other provisions of the Wills, Estates and Succession Act (WESA).
Is there a limit to what Section 58 can cure?
Yes, there are limits. The more a document deviates from formal requirements, the stronger the evidence must be to support its validity. For instance, a note that lacks a date, a name, and any mention of gifts is unlikely to meet the necessary threshold.
Key Takeaways
Section 58 allows BC courts to validate informal documents, such as emails that clearly express the deceased’s testamentary intent.
Authenticity and final intent are the two core tests.
Good drafting today prevents costly litigation tomorrow.
Need Advice?
If you believe a will treats you unfairly or want to ensure your own estate plan avoids future disputes, book a consultation with Parr Business Law. We’ll walk you through your rights and help design a plan that protects your loved ones and your legacy.
Sources
AI Statement: OpenAI’s language tools and Grammarly were used to generate synonyms, correct grammatical issues, and adjust sentence structure, ensuring greater clarity for the reader.
Wills, Estates and Succession Act, S.B.C. 2009, c. 13, s. 58 https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/09013_01
Re Young Case
https://www.bccourts.ca/jdb-txt/SC/15/01/2015BCSC0182.htm
PBL Blog on Drafting Wills
https://www.parrbusinesslaw.com/blog/create-a-will-in-british-columbia
