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We’ve previously written about section 58 of the Wills, Estates and Succession Act, which gives the Court discretion to cure deficiencies in a will or will-like document that would otherwise make it invalid. Until recently, section 58 had been used to give testamentary effect to defective wills or will-like documents. However, in Jacobsen Estate, Re, 2020 BCSC 1280, the Court utilized section 58 to give effect to a deceased person’s intentions even though her will was perfectly valid.
In Jacobsen, the deceased died leaving a will that left her estate to her then common-law spouse. After making the will but before her death, she and her spouse separated.
Following their separation, the deceased consulted a lawyer with respect to her separation as well as for estate-planning issues. When they discussed making a new will, the deceased eventually confirmed that she still wanted her former spouse to inherit notwithstanding their separation. The deceased’s capacity and health declined and she died never having made a new will.
Unfortunately, neither the deceased nor her lawyer seemed to be aware of section 56(2) of WESA, which automatically revokes any gifts made under a will to a will-maker’s spouse if they subsequently cease being spouses.
In order to give effect to the deceased’s intentions, the executor of the deceased’s will applied to the Court for an order reviving those clauses of the deceased’s will that left her estate to her former spouse. The application was unopposed.
In making an order under section 58 giving effect to those clauses so as to allow the deceased’s estate to pass to her former spouse, the Court made the following comments:
[35] The Will complies with the WESA. While the Will now includes, on its face, clauses that are ineffective by virtue of s. 56(2), that does not bear on Will’s validity. Nor is there any another document that is said to be testamentary – there is only the Will.
[38] Here, because the deceased was unaware of the revocation, her post-separation statements and conduct should be considered from her perspective. To the deceased, all of the terms on the face of the Will constituted the terms of her intended testamentary document. Post-separation, the deceased was aware of the specific terms set out on the face of the Will, and she regarded those terms as existing in fact (i.e., irrespective of their legal effect). She unequivocally, repeatedly and consistently affirmed the terms appearing on the face of the Will as an accurate representation of her testamentary intentions both after separation and while of capacity. I am left without doubt that the terms on the face of the Will – including the Hyde clauses – represent the deceased’s true testamentary intention.
[43] The WESA would have enabled the deceased to achieve her post-separation intentions in accordance with its provisions by undertaking certain formalities: e.g., re-executing the Will or executing a codicil: s. 57(1). The deceased did not comply with any of those formalities, but she did unequivocally manifest her intentions repeatedly in statements to her solicitor and power of attorney. The purpose of s. 58 is to ensure that discernible testamentary intentions are not thwarted “for no good reason” by a failure to comply with statutory requirements. Declaring the terms set out in the Will, in their entirety, effective as the deceased’s will as at the time of her death accomplishes exactly that.
This case is an example of the lengths to which the Court will go to give effect to the testamentary intentions of a deceased person.
