The new Wills, Estates and Succession Act ("WESA") has given the Court a new power to “fix” or “correct” a problem where a Will does not comply with the formal rules of execution. In its broadest interpretation, the Court may consider almost any evidence of a person’s intention and give effect to it as though it is a person’s valid Will.
For example, Courts can now consider any “record, document or writing or marking on a Will or a document”. A “record” can literally be any form of writing or marking on any medium (including but not limited to emails, texts, napkins or scraps of paper!). This is quite alarming, and although it is not yet known how far the Courts will go in using this power to declare a document a Will even if it falls short of a properly witnessed Will, it is extremely important to properly document your wishes as there is a risk that this new power will open the door to many Court challenges. Regardless of the actual outcome of any such challenge, litigation over an estate can be expensive for the estate and its beneficiaries, and is best avoided.
Changes should only be made to a Will through the creation of a valid Will prepared with the assistance of professional advisors. The following practices should be observed:
1. You should avoid documenting partial or incomplete planning ideas in ways that might be misconstrued as your final intention to amend your current Will and / or create a valid new Will. Any ideas should be marked for discussion purposes only.
2. You should never write proposed changes on your present Will or a copy of same.
3. You should avoid suggestions (in writing, whether electronically or in paper format) to anyone that you intend to gift them anything in your Will.
4. When it is time to change your Will, you should move expeditiously to do so with the assistance of professional advisors.
If you pencil in changes that you are thinking of on a copy of your Will, for example, the Court could now make an order that the Will is fully effective, as amended.
For lawyers, these changes in the law introduced by WESA mean more rigid note taking of their discussions with their clients, and when sending out drafts to clients for review, they must be very clearly marked as draft documents for discussion purposes only.
This information applies as a general rule but may change depending upon the specific circumstances of your own situation. You should consult a lawyer before acting on any of this information. If you have any questions, please do not hesitate to contact Vanessa DeDominicis directly on 250-869-1140 or [email protected]. Vanessa practices in the area of Wills and Estates with Pushor Mitchell LLP in Kelowna, B.C.
