Updates to Wills and Estates Act Helps to Simplify the Process

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Estate planning can save both time and money, and ensure your wishes are truly and fairly represented

Revisions to Sections 58 and 59 address what previously may have invalidated a will to now recognize testamentary intentions

Given the long process of legal disputes, the impact of the Wills Estates and Succession Act (WESA), which was put into place in 2014, is only now beginning to be fully understood—and proving to be of significant benefit to will-makers and their beneficiaries, according to Matthew Wansink, business lawyer with SHK Law Corporation, whose practice includes estate planning.

First, Section 58 of WESA allows the courts to be more lenient in finding a will valid, as long as they can determine the will-maker was acting in good faith and that his or her intentions are truly represented in the will.

Wansink, who is part of the SHK estate planning team that organizes clients’ estates and minimizes their tax burdens, says: “Section 58 is a drastic move away from old requirements and it addresses what we colloquially refer to as ‘back of the napkin’ type wills that would otherwise have been dismissed by the courts as invalid.” 

Section 59 of WESA is just as important to legacy planning because it allows applicants to claim that the terms of a last will and testament need to be rectified in order to truly reflect the will-maker’s testamentary intentions (an application for rectification must be made no later than 180 days from the date a representation grant is issued).

Wansink notes that Section 59 directly addresses the fact that even the most scrupulous legal professionals can make mistakes—as can the estate owner—when formulating a will. 

“It could be that the will-maker wants to leave a large legacy gift to a children’s hospital but an incorrect hospital is actually named in the will,” he says. “Under Section 59, if enough evidence is brought to light showing what the estate owner truly intended, the will can be remedied, and his or her last wishes can truly be honoured.”

But there is a caveat to sections 58 and 59, and that is anything brought before the courts has a price tag. “Proving in the courts that a will is legitimate under Section 58 could easily costs thousands of dollars and drain the value of the estate in question,” says Katrina Yaworsky, wills and estate lawyer at SHK. “That’s why we at SHK urge estate owners to retain a lawyer and draft a proper will in the first place.”

While taking advantage of Section 59 can be less onerous (depending on the magnitude of the rectification in question), it too can quickly drain the value of an estate, “especially if the will is being contested,” says Yaworsky.

Nonetheless, the WESA provides mechanisms that give those associated with estates legal methods by which to ensure one’s final wishes are clarified, truly represented and carried out. “And while Section 58 illustrates the importance of creating a proper legal will to begin with, Section 59 shows the importance of taking the time to carefully review what has been drafted on paper,” says Wansink. 

“Nobody’s perfect and mistakes are inevitable—but with something as important as a final will and testament, it’s in your estate’s best interests to minimize mistakes as thoroughly as possible.”