Fixing Mistakes in Wills: What WESA Section 59 Means for Families

Imagine discovering that your father's will mistakenly names a deceased sibling as executor when your father clearly meant you. These are not typos that should be ignored. Under Section 59 of the Wills, Estates and Succession Act (WESA), the court has the authority to fix mistakes in wills that fail to carry out the will-maker's true intentions. This is possible as long as the error is an accidental slip, a misunderstanding of instructions, or a failure to follow them. 

This article will explain how Section 59 operates, the legal standards that courts apply, important court cases in British Columbia, and practical advice for protecting your will from these costly mistakes.

What Section 59 of WESA Says

Section 59(1) provides courts with the power to order that a will be rectified if the will fails to carry out the will-maker's intentions because of:

(a) an error arising from an accidental slip or omission,
(b) a misunderstanding of the will-maker's instructions, or
(c) a failure to carry out the will-maker's instructions.

This remedy ensures that a person's true intentions in their will are not defeated by clerical errors or drafting mistakes. Meaning that, if you can prove a mistake happened during the creation of the will, the court can correct it to match what the testator actually meant.

Section 59(2) also makes clear that extrinsic evidence, including evidence of the will-maker's intent, is admissible to prove the existence of a circumstance described in subsection (1). This allows the court to look beyond the will itself.

Who Can Bring a Claim?

People affected by the error, such as beneficiaries who receive less than intended, heirs who are accidentally omitted, or executors who need clarity about the estate plan, can apply for rectification. Although executors and beneficiaries typically handle Section 59 applications, others with a stake in the estate may also be involved

Formal Requirements for a Valid Will

Ordinarily, a will is strictly interpreted as written. The court assumes the words on the page reflect what the testator intended, regardless of the circumstances.

However, if those words got there by mistake, the will is technically valid but substantively wrong. Section 59 exists to bridge the gap between what was written and what the testator actually meant to happen.

How Section 59 Cures Deficiencies

Section 59 of WESA gives courts the flexibility to align a will with a person's true final wishes, even when drafting errors prevented this. However, this curative power is only applied when the error falls into one of three categories: a slip, an omission, or a misunderstanding of instructions.

How to Deal with an Accidental Slip or Omission

The first step in any Section 59 analysis is determining whether the document contains a clear mistake made by accident. Courts look at several indicators to assess this:

• A typo or a name spelt incorrectly
  

• A number written wrong (e.g., "$10,000" instead of "$100,000")
  

• A gift accidentally left out of the clause
  
  

These details help the court establish that the error was unintentional and can be corrected without changing the testator's core wishes.

A prominent example is the case of Re Jamt Estate, 2021 BCSC 788. In this instance, the will‑maker intended to leave his estate to his living nephew, “Per Martin Jamt.” However, he accidentally gave the lawyer the name of his deceased brother, “Per Kare Jamt.” The court used s. 59 to swap the names after confirming that this was a simple mistake of identity, not a deliberate choice to exclude the nephew. The judge found that the testator’s fixed intention was to benefit his nephew, and the error defeated that clear wish.

If the court is satisfied that there was an accidental slip or omission by the will‑maker or in the drafting, it may order the will rectified to match the will‑maker's true intentions.

Looking Beyond the Document: Extrinsic Evidence Matters

The curative power of Section 59 extends beyond the will itself. In Simpson v. Zaste, 2022 BCCA 208, the BC Court of Appeal reaffirmed that extrinsic evidence, particularly the drafting lawyer’s notes and testimony, can be used to determine whether a mistake in the will defeats the testator’s true intentions, provided the error falls within Section 59(1).​

Although the court’s analysis was fact-specific, it confirmed that the will-maker’s communications with the lawyer are often the strongest evidence of intent. This includes not only what the testator said but also what was recorded in the lawyer’s file at the time the will was created.​

In summary, the courts prioritize carrying out the will-maker’s true intentions over the strict words on the page where an error within Section 59(1) is clearly established. If the evidence shows the testator meant something different from what the will states because of such an error, Section 59 empowers the court to rectify the will to reflect that intention.

Practical Tips for Will-Makers

• Use a professional will-drafting service to ensure full compliance with WESA.
  

• Review your draft carefully before signing. Ask your lawyer to explain any clauses you do not fully understand.
  

• Keep a copy of your signed will in a safe place and do not write on it without legal advice.
  

• If you spot an error after signing, contact your lawyer immediately to fix it properly, not with handwritten notes.
  

For more information, here is a guide on drafting wills:
https://www.parrbusinesslaw.com/blog/create-a-will-in-british-columbia

Frequently Asked Questions

Is there a deadline to apply for rectification?

Yes. Section 59(3) states that an application for rectification must be made no later than 180 days from the date the representation grant is issued, unless the court grants leave to make an application after that date.

Does Section 59 allow me to change a will I think is unfair?

No. That is a different claim, called Wills Variation. Section 59 is only for fixing clerical or drafting mistakes, not for challenging whether the gifts are fair or reasonable.

Can I fix a homemade will with Section 59?

Yes, if you can prove the error was a slip or misunderstanding. However, homemade wills are harder to rectify because there is no lawyer's file to prove what your original instructions were. This is why professional drafting is strongly recommended.

Key Takeaways

• Section 59 allows BC courts to fix typos, omitted names, and drafting errors in wills.
  

• The error must be a slip, omission, or misunderstanding of instructions, not a change of heart.
  

• Lawyer's notes and other outside evidence are critical for proving the mistake.
  

• Good drafting today prevents costly rectification disputes tomorrow.
  

Need Advice?

If you suspect a will contains a mistake that affects your inheritance, or if you are an executor dealing with a confusing will, book a consultation with Parr Business Law. We'll help you determine if a Section 59 application is the right path forward.

Sources

Editing for clarity and accuracy assisted by OpenAI, Perplexity, and Grammarly.

Wills, Estates and Succession Act, S.B.C. 2009, c. 13, s. 59
https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/09013_01

Re Jamt Estate Case
https://www.bccourts.ca/jdb-txt/sc/21/07/2021BCSC0788.htm

Simpson v. Zaste Case
https://www.bccourts.ca/jdb-txt/ca/22/02/2022BCCA0208.htm

PBL Blog on Drafting Wills
https://www.parrbusinesslaw.com/blog/create-a-will-in-british-columbia