Pauline Palmer died on June 24, 2016 in British Columbia. She left a Will dated August 18, 1988. The Will left her estate to her cousin. The cousin predeceased Ms. Palmer. Her estate would therefore pass to her next of kin, being her 6 nieces and nephews.
However, at some point, Ms. Palmer made changes to her Will. She changed the estate trustee to a second cousin, Allen Homeniuk, and deleted the name of the cousin, inserting wording that would seem to give the estate to Allen. Some of the changes were in blue ink, and some in black ink. The changes were not signed, but were initialled.
The handwritten changes did not comply with the formal requirements for altering a Will under B.C.’s Wills, Estates and Succession Act (“WESA”). Allen moved for an order to cure the deficiencies under the curative provisions of the WESA. In particular, s. 58 allows a court to give effect to changes made that do not comply with the formal requirements. In considering the question of whether to allow the change notwithstanding noncompliance, the court will inquire into:
- whether the document in question is authentic;
- whether the document represents the deceased’s intentions;
- whether the document records a deliberate or fixed and final expression of the intentions of the deceased.
B.C. courts have noted that their curative power is inevitably and intensely fact-sensitive. The burden of proof is on a balance of probabilities. Factors relevant to finding a fixed and final expression of intention include the presence or absence of a signature, the deceased’s handwriting, witness signatures, revocation of previous wills, funeral arrangements, specific bequests and the title of the document.
Allen’s application to validate the changes was opposed by some of the nephews. They argued that the changes were not a deliberate or fixed and final expression of Ms. Palmer’s intentions, but rather, “simply the musings of an aging lady”.
In its decision reported at Estate of Palmer, 2017 BCSC 1430 (CanLII), the court concluded that it could not decide the question based solely on the conflicting affidavit evidence before it. Further, the court wanted to hear evidence as to Ms. Palmer’s capacity at the time the changes were made. A trial of the issue was ordered (perhaps unfortunately, as the estate had a value of only $200,000). Further, it was ordered that all other potential beneficiaries be put on notice of the proceeding.
In Ontario, strict compliance with the requirements of executing and altering a will is required. There is no similar provision to the curative powers found in s. 58 of the WESA. For a discussion of the requirements for valid alterations to a will, see our blogs “Handwritten Alterations to an Executed Will” and “Handwritten Alterations to a Formal Will”.
Thank you for reading, and have a great long weekend.