Where There’s a Will, There’s a Way

Credit: Courtesy Allison Kuhl Photography

Aubrie Girou (left) and Judy Rost say that a will that is on its face defective, may still be enforced

Mistakes in a will can be cured with the latest legislation

Until recently—as many executors can attest—a will intended to benefit family and friends could be deemed invalid if the formal requirements for its execution weren’t followed to the letter.

But Judy Rost, partner with Alexander Holburn Beaudin + Lang LLP, points out that a provision of the Wills, Estates and Succession Act (WESA) now gives the court discretion to overlook some of these formal requirements.

She explains: “Section 58 is a remedial, curative provision that allows the court to honour the will-maker’s intention, as long as the deceased’s document is determined to be authentic and truly represents his or her testamentary intentions.”

Aubrie Girou, associate at Alexander Holburn, adds: “The use of section 58 will only be available in circumstances where issues of substantive validity—such as lack of capacity or undue influence—do not arise.”

To be “formally valid” wills must be set forth in writing, signed by the will-maker in the presence of two witnesses at the same time, and signed by two or more witnesses in the presence of the will-maker and each other.

Cases of wills being rejected due to strict application of the requirements were not uncommon, including a situation in which two witnesses signed a will in the will-maker’s presence but not in the presence of each other.

Fortunately, both Rost and Girou can now cite examples of well-meaning will-makers who benefitted from Section 58 of WESA, which was enacted in 2014. “The Young Estate case involved the deceased leaving two documents on her dining room table, one of which was signed and dated and set out specific bequests, used language that conveyed an air of finality, and a copy was shared with a neighbour for safekeeping,” says Girou. 

“The court decided that document was a legitimate part of her will and could be admitted to probate.”

But Section 58 hardly means every document will be treated as a valid will. In the Hadley Estate case, a handwritten entry in a journal titled “This is my Last Will” was made after the will-maker suffered a significant health episode and before she met with her trust officer and lawyer to discuss formulating a new will. According to Rost, the court found that the will-maker “made the entry in a ‘confused’ state, removed previously-named beneficiaries without explanation, and—importantly—did not disclose the existence of the entry to anyone despite later communicating her wishes to make a new will and taking steps to do so. Ultimately, the entry was deemed invalid.”

Many other cases demonstrating the usefulness of Section 58 are coming to light, but Girou stresses that at the end of the day, “creating a will that is not defective in the first place remains the best option for ensuring that your testamentary intentions are followed on your death. As for executors, they need to exercise due diligence in searching through the deceased’s possessions and documents—and if any questionable material is located, get legal advice. We’re here to help.”