How BC Courts Can Validate Invalid Wills Under WESA Section 58

Under WESA Section 58, BC courts can validate wills that do not meet formal requirements if they represent the deceased’s genuine testamentary intentions. You will need to prove the document’s authenticity and that it reflects deliberate final wishes. Courts consider the document itself, specific bequests, timing factors, and external evidence. While handwritten notes, journal entries, and even text messages may qualify, significant formal deficiencies make validation more challenging. The following sections explain the complete validation process.

How BC Courts Can Validate Non-Compliant Wills Under WESA Section 58

Before 2014, if you created a will that did not strictly follow legal formalities in British Columbia, your final wishes might not have been honoured regardless of how to clear your intentions were.

The introduction of Section 58 in the Wills, Estates and Succession Act (WESA) changed this rigid approach.

Now, BC courts have the discretion to validate documents that do not meet formal requirements but still represent your genuine testamentary intentions.

Section 58 of WESA empowers courts to honor your true intentions despite technical deficiencies in will documentation.

The court examines whether the document is authentic and reflects your deliberate, fixed expression of how you wanted your estate distributed after death.

Various forms of evidence can be considered, including handwritten notes, electronic records, or even text messages that clearly communicate your wishes.

The more your document resembles a traditional will, the higher its chances of being validated.

The Purpose and Power of Section 58 WESA

Section 58 of WESA serves as a powerful remedy for wills that would otherwise fail due to technical deficiencies, fundamentally changing how BC courts approach estate documents. This provision grants courts the discretion to validate documents that do not meet formal requirements if they authentically represent the deceased’s settled testamentary intentions.

Before WESA’s introduction in 2014, courts were bound by strict formalities that often prevented legitimate final wishes from being honoured.

Now, you can have confidence that a court may recognize various “will-like” documents—including handwritten notes, unwitnessed documents, or electronic records—as valid expressions of testamentary intent.

The court’s assessment focuses on whether the document represents deliberate and fixed intentions rather than mere contemplations. This curative power balances formal requirements with the paramount goal of respecting a person’s final desires.

Traditional Requirements for Valid Wills in British Columbia

Formality and precision have long defined British Columbia’s approach to will creation, establishing strict parameters for what constitutes a legally valid document.

Under WESA, a valid will must be in writing and signed at the end by the will-maker. This signature must occur in the presence of at least two witnesses who must also sign while the will-maker is present.

Before 2014, courts rigidly applied these formalities, often preventing legitimate final wishes from being carried out due to technical errors or oversights in document preparation.

Types of Non-Compliant Documents Courts May Consider

Various informal documents can now qualify for validation under WESA’s curative provisions, despite falling short of traditional will requirements. Courts may consider handwritten notes, journal entries, electronic communications, and even text messages that express testamentary intentions.

These documents must demonstrate authenticity and represent the deceased’s deliberate and fixed expression of how they wanted their estate distributed.

The Bizicki Estate case illustrated that multiple handwritten notes can collectively constitute a valid will when they clearly indicate final intentions. Similarly, personal journals might qualify if they contain specific bequest instructions rather than mere contemplations.

However, you should note that greater deviation from formal requirements makes validation increasingly difficult. Courts examine all available evidence, including circumstances before, during, and after the document’s creation, to determine if it truly represents the deceased’s final wishes.

The Legal Test for Validating Informal Wills

When examining whether an informal will can be validated under WESA section 58, British Columbia courts apply a specific legal test established through case law.

The court must first confirm the document’s authenticity, ensuring it was actually created by the deceased.

Next, and most importantly, the court must determine whether the document represents the deceased’s “deliberate and fixed expression of testamentary intentions.” This means the document must show the person’s final decisions about how their estate should be distributed after death.

Courts consider several factors in this assessment, including the document’s language, presence of signatures, specific bequests, mentions of previous wills, and any extrinsic evidence of the deceased’s intentions before, during, and after the document’s creation.

The more a document deviates from formal requirements, the harder validation becomes.

Key Court Decisions Interpreting Section 58

Since WESA section 58 came into force in 2014, British Columbia courts have developed a substantial body of case law interpreting its application to informal wills.

The Hadley Estate case established key limitations, where the Court of Appeal refused to validate journal entries as they did not represent the deceased’s final testamentary intentions.

Conversely, in Bizicki Estate, the court validated handwritten notes as a valid will because they clearly expressed the deceased’s settled intentions for property distribution after death. The “Money” note and “Executor” note were given testamentary effect due to their specificity and finality.

These cases demonstrate that courts will validate non-compliant documents only when convinced they are authentic and represent deliberate, fixed expressions of final intentions.

BC courts demand proof that informal documents reflect authentic, settled testamentary intentions before validating them as wills.

As documents deviate further from formal requirements, validation becomes increasingly difficult.

Evidence Required to Prove Testamentary Intentions

Proving testamentary intentions under WESA Section 58 requires substantial evidence that goes beyond the document itself. Courts examine multiple factors to determine whether a document represents the deceased’s fixed and final intentions for their estate distribution.

Evidence Type	What Courts Consider
Document Characteristics	Signature, handwriting, formatting, witness marks
Content Analysis	Specific bequests, executor appointments, funeral wishes
External Context	Conversations with family, lawyer appointments scheduled
Timing Factors	Proximity to death, life changes like divorce or birth
Consistency	Whether intentions match other statements or actions

You will need to demonstrate that the document was not merely a draft or fleeting thought but represented the deceased’s deliberate plan for their estate. The court weighs all available evidence on a balance of probabilities standard.

Limits of the Court’s Curative Powers

While WESA Section 58 grants courts significant flexibility to validate non-compliant documents, this power is not unlimited. The further a document deviates from formal will requirements, the more difficult it becomes for courts to validate it.

You should understand that courts apply a stringent legal test requiring proof that the document is both authentic and represents the deceased’s deliberate, fixed testamentary intentions.

The Hadley Estate case illustrates these limitations, where journal notes expressing wishes to change beneficiaries weren’t validated because they appeared to be personal thoughts rather than final decisions.

Remember that without the deceased’s declaration, the court must rely on extrinsic evidence to determine intent, making the validation process inherently challenging, especially for documents with significant formal deficiencies.

Steps to Apply for Validation of an Informal Will

When seeking to validate an informal will under WESA Section 58, you will need to follow a structured application process through the BC courts.

First, gather the document in question and all relevant evidence that confirms its authenticity, such as handwriting samples or witness statements.

Evidence collection is your foundation. Secure the document and gather all proof of authenticity before proceeding.

File an application with the BC Supreme Court, including affidavits that demonstrate the document represents the deceased’s deliberate and final testamentary intentions.

Your evidence should address circumstances surrounding the document’s creation, any statements the deceased made about their intentions, and why formal requirements were not met.

Be prepared to demonstrate on a balance of probabilities that the document truly embodies the deceased’s wishes for estate distribution, despite lacking formal requirements.

The court will assess both the document itself and all extrinsic evidence provided.

How Vest Estate Law Can Help

Maneuvering the complexities of WESA Section 58 applications requires specialized legal expertise that Vest Estate Law proudly delivers.

As a boutique firm dedicated exclusively to wills and estates law across Alberta and BC, we recognize the nuanced approach needed to validate informal documents that do not meet statutory requirements.

When you are dealing with handwritten notes, journal entries, or other non-compliant testamentary documents, our focused knowledge becomes invaluable.

We will help you determine if the document represents the authentic, deliberate, and final wishes of the deceased.

If litigation becomes necessary, you will benefit from our experience in estate litigation.

Our team can guide you through every step of the validation process, from gathering supporting evidence to making compelling arguments before the court.

Work with Vest—specialists in Estate Law.

Frequently Asked Questions

Can a Will Recorded as a Video Be Validated Under Section 58?

Yes, your video will could be validated under Section 58 if the court finds it’s authentic and represents your fixed, final declaration of intent, despite lacking formal written requirements.

How Long Does the Court Validation Process Typically Take?

Court validation for informal wills typically takes 6-12 months, depending on your case complexity, whether it is contested, and the court’s backlog in your jurisdiction. You will need patience.

What Happens if Witnesses to an Informal Will Are Deceased?

If witnesses to your informal will are deceased, the court can still validate it under Section 58 by examining other evidence of your authentic and fixed will intentions.

Can WESA Section 58 Validate Wills Made Outside British Columbia?

Yes, WESA Section 58 can validate wills made outside BC if they do not meet formal requirements, but you will need to prove they represent the deceased’s authentic and final declarations of intent.

Are There Age Requirements for Witnesses to Informal Documents?

Yes, witnesses to informal documents must be at least 19 years old to comply with WESA requirements. You cannot use minors as witnesses for any documents seeking Section 58 validation.

Conclusion

If you have found an informal document expressing a loved one’s final wishes, you are not without options. Section 58 of WESA gives you a pathway to potentially validate these documents when they reflect authentic testamentary intentions. Do not assume informal notes are automatically invalid—consult with an estate lawyer to determine if the court might recognize them as a valid expression of the deceased’s final wishes.