The Wills, Estates and Succession Act (British Columbia) (“WESA”) shall come into force on March 31, 2014. In that regard, there are many new provisions which move well beyond the scope of the earlier legislation and law in the area of wills, estate, probate and succession. This article addresses one of the more fundamental changes.
This significant change is contained in WESA and relates to the ability of the court to correct an error or omission contained in an executed Will. This is in rather stark contrast to the well established common law rule, which severely limited a judge’s ability to “cure” a defective Will. The new curative and rectification powers of the courts, are found in sections 57 and 59 of the WESA, and follow model legislation recent enacted in both England and Australia, as well as in the Provinces of Saskatchewan, Manitoba, Quebec, New Brunswick and P.E.I.
Given the the British Columbia law has yet to come into force, and therefore has not been judicially considered, a very recent example from the UK may prove illustrative. On January 22, 2014, the UK Supreme Court addressed the issue of a clerical error, which muddled two draft wills. The UK’s highest court held that the defect, which saw each testator (husband and wife, intending to sign mirror wills) sign the will prepared for the other, should be rectified so as not to disinherit a couple’s intended heir.
Whilst the existing legal commentary on this curative provision of WESA suggests that the British Columbia language is narrower in scope and judicial discretion, than that in Australia and the UK, it is possible that, over time, the WESA provisions may not be as narrowly applied in practice. This could allow judicial intervention, resulting in movement beyond the testator’s original intent.
This, and other WESA provisions, require that your Will be carefully drafted, that your Will be up to date, and prepared in relation to other estate planning documents, including Powers of Attorney, Representation Agreements and trusts. We would be happy to assist you in preparing a new or revised will, and other estate planning documents, as may be necessary.