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Estate Law, WESA s.58

Changing a Will in BC: Beneficiary Disinherited by White-Out

By Candace Cho

There are specific requirements for changing a will in BC after it has been made, just as there are specific requirements for making a will in the first place. Our BC estate lawyers have recently discussed the formal execution and attestation requirements that must be satisfied to make a valid BC will and whether there is a way to “save” a will that fails to meet those formal validity requirements. See Quinn Estate v. Rydland #1. Today we will examine the same issue, but in the context of changing a will after it has been made.

Recent estate litigation arising from changing a will

Can an alteration to a BC will be effective if the change to the will does not meet the formal requirements? That was the question for the court in Levesque Estate (Re), 2019 BCSC 927. In this case, Ms. Levesque died on August 17, 2018 leaving a will made on May 21, 2009 (the “Will”). The Will was executed in accordance with the formal requirements. Seven beneficiaries were listed the Will, such that Ms. Levesque’s estate was to be divided into seven equal parts and distributed among her six children and her eldest grandchild, Ms. Nixon. When giving instructions for the Will to be prepared, Ms. Levesque explained that she wanted to provide for Ms. Nixon because Ms. Nixon’s parents were not present in her life, while all her other grandchildren were supported by their parents. When Ms. Levesque died almost 10 years after the Will was made, it was discovered Ms. Nixon’s name had been removed from the list of beneficiaries with white-out. The dispute was whether the name obscured by white-out was effectively deleted from the Will or still formed part of the Will.

Facts surrounding changing a will

The court first considered how and when the alteration was made. Ms. Levesque had custody of the Will from the time it was made, and it was found in a sealed envelope when she died. There was convincing evidence that Ms. Levesque decided to change her Will because she was upset with Ms. Nixon’s decision to elope and get married in Thailand without telling her in advance. Also of note was that there was no evidence of another plausible explanation for the change to the Will. 

Changing a will: Is the alteration legally effective?

Being satisfied on a balance of probabilities that Ms. Levesque was indeed the one who made the change to the Will, the next issue for the court was whether the alteration was legally effective. Changes to a will are addressed in s. 54 of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 [“WESA”]. Essentially, s. 54 requires that changes to a will made after the will was executed must be signed by the will-maker, whose signature must be witnessed by two witnesses, in each other’s presence and in the presence of the will-maker. These requirements may be avoided:

  • Under s. 54(4)(a), if the alteration is not substantive;
  • Under s. 54(3)(a), if the alteration has made a word or provision illegible; or
  • Under s. 54(3)(b), if the alteration is made effective by an order pursuant to s. 58(3) of WESA.

In the Levesque Estate case, the change to the Will made by white-out was not witnessed nor was the change signed by Ms. Levesque. Turning to the potential exceptions to the formality requirements, the court held that the change to the Will was substantive so s. 54(4)(a) could not apply. The exception in s. 54(3)(a) for alterations that make a word or provision illegible also could not apply, as the provision in question listing Ms. Nixon as a beneficiary could be read through the white-out by holding the Will up to the light. The change was therefore ineffective unless it could be made effective by an order pursuant to s. 58(3) of WESA.

Changes to will can be given legal effect despite non-compliance with formal requirements

The court has discretion to “cure” deficiencies in a will pursuant to s. 58(3) of WESA. In other words, the court can order that a will or a change to a will is legally effective despite it failing to meet the formal validity requirements. There are two issues for the court in deciding whether to make an order under s. 58(3) of WESA:

  1. Whether the document is authentic; and
  2. Whether the non-compliant document represents the deceased’s testamentary intentions.

The key question relating to the second issue is whether the document records a deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death. A deliberate or fixed and final intention is not the equivalent of an irrevocable intention, because by its nature a will is revocable until the death of its maker. Rather, the intention must be fixed and final at the material time, which will vary depending on the circumstances. The burden of proof that a non-compliant document embodies the deceased’s testamentary intentions is a balance of probabilities. A wide range of factors may be relevant to establishing their existence in a particular case.

“Curing” deficient changes to a will under s. 58(3)

In Levesque Estate, the court found that the change made by White-Out was made by Ms. Levesque, so the first issue of authenticity was satisfied. Turning to the second issue, the court considered whether on balance of probabilities the change to the Will was a deliberate or fixed and final expression of the Ms. Levesque’s intention to remove Ms. Nixon from her Will. The court concluded that carefully dabbing White-Out over the provision in question was undoubtedly a considered and deliberate act on the part of the will-maker. She was applying the White-Out to the original Will; it was not a casual act. The only reasonable inference is that her intention was to remove the provision from the Will. There was no evidence that the will-maker was not of sound mind or that she lacked testamentary capacity at any point before she gave up custody of the Will in June 2018 or indeed before she died. The court was also satisfied of the likelihood Ms. Levesque applied the White-Out after she learned that Ms. Nixon had eloped in January 2018. The facts established that Ms. Levesque made the change to her Will deliberately, in the knowledge that she was altering the original Will, with the intended effect that Ms. Nixon was removed as a beneficiary. The change to the Will was a deliberate or fixed and final expression of the Ms. Levesque’s intention to remove Ms. Nixon from the Will. It was therefore appropriate to order that the change be made effective pursuant to s. 58(3) of the WESA. As a result, Ms. Nixon was disinherited from her grandmother’s estate.  

Bottom line on changing a will in BC

The formal requirements for making a will and changing a will imposed by WESA are intended to prevent a will from being made or changed by accident or inadvertence. BC estate litigation frequently arises where will-makers attempt to change their will without complying with the formal requirements. This tendency of will-makers to ignore the formal requirements is one of the reasons s. 58 was added to WESA, allowing the court to approve non-complying wills or changes to a will where the will-maker’s intentions to make a will are clear. If you would like to discuss how this applies to your BC estate law matter, we invite you to call (604) 900-2538 to schedule a free 30-minute consultation with Onyx Law Group.