Levesque Estate (Re), 2019 BCSC 927

In Levesque Estate (Re), 2019 BCSC 927, the BC Supreme Court considered an application by executors to determine whether an alteration to a will was legally effective.

Upon opening the sealed envelope containing Beverly Levesque’s last will, her daughter discovered that a beneficiary’s name had been obscured using whiteout. In holding the document under a light, the name of the deceased’s eldest granddaughter became discernable.

In its original form, Ms. Levesque’s will divided her estate equally between her six children and that granddaughter. The executors applied to the Court for a determination as to whether the whiteout alteration had the legal effect of removing the eldest granddaughter as a beneficiary. The result would have the effect of dividing the estate solely among the 6 adult children.

In deciding that the whiteout alteration had the legal effect of excluding the granddaughter from inheriting, the Court considered:

• how and when the alteration was made;
• if the alternation was a valid alteration in accordance with section 54 of the Wills, Estates and Succession Act (WESA); and
• If the alteration was not a valid alteration, should it be made effective by an order under section 58 of WESA.

When considering how and when the alteration was made, the Court considered:

• the circumstances surrounding the initial drafting of the will. Ms. Levesque’s daughter-in-law assisted with this and was able to provide evidence;
• The chain of custody of the will. The Court accepted that from 2009 when the will was drafted to 2018, the will was held by Ms. Levesque and stored in her nightstand. She lived independently and it was unlikely that anyone else would have had access to her nightstand and, by extension, the will.

After suffering declining health and moving in with her daughter, Ms. Levesque instructed that the contents of the nightstand, including the will, be provided to her. She gave the will to her daughter for safekeeping in a desk drawer. The will was in sealed envelope and remained unopened until after Ms. Leveque’s death; and

• The Court accepted that, on a balance of probabilities, Ms. Levesque was the person who made the alteration to the will.

In considering when the alteration may have been made, the Court accepted that Ms. Levesque was upset about her granddaughter’s elopement, which occurred approximately 9 years after the will had been drafted.

While the Court also accepted that Ms. Levesque forgave her granddaughter, this did not negate the evidence that she was initially upset with her granddaughter. The Court could not find any alternate plausible reason or explanation for the alteration.

After considering how and when the alteration was made, the Court first considered whether the alteration would have been effective in accordance with section 54 of WESA, which governs alterations to wills. In accordance with this section, an alteration to a will must be signed by the will-maker in the presence of two witnesses. The whiteout alteration did not meet this requirement. It also failed to meet the standards for avoiding the requirement in that it was a substantive alteration that did not make the altered provisions or word illegible. As such, the whiteout alteration could not be considered as a valid alteration of Ms. Levesque’s will within the requirements of WESA.

The Court then turned to section 58, which gives the Court the power to cure deficiencies in will. This includes the power to order that a writing or marking on a will be fully effective as though it had been made as an alteration of the will of the deceased person.

The Court began by considering whether the document was authentic. In finding that Ms. Levesque was likely the person who altered her will, the authenticity requirement was satisfied.

The Court then examined whether the alteration represented a deliberate or fixed and final expression of Ms. Levesque’s intention to remove her granddaughter as a beneficiary under her will.

In finding that the alteration did amount to a deliberate expression of intention, the Court noted the careful application of whiteout to the original document, stating that this showed intention and was “not a casual act.” The Court further noted that there was no evidence that Ms. Leveque suffered from incapacity nor was there evidence that she took further steps to alter her will.

As a result, the granddaughter was excluded from sharing in Ms. Levesque’s estate.