Section 58 of the Wills, Estate and Succession Act (the “WESA”) permits the court to cure a non-compliant will and to declare that any “record, document or writing or marking on a will or document” has testamentary effect if satisfied that the “record, document or writing” embodies the testamentary intention of the deceased. A record is defined to include data that (i) is recorded or stored electronically, (ii) can be read by a person, and (iii) is capable of reproduction in a visible form.

Increased responsibility falls on the executors who must, in an application for probate, swear to having searched diligently for other testamentary documents. Executors are advised to make an exhaustive hunt for writing or records of the deceased, which may include handwritten notes, a printed document, email correspondence and digital records on computers and tablets, in the event that a document exists that includes testamentary intentions of the deceased. If any such record, document or writing is found, that document, however unorthodox, should be put before the court.

In Estate of Young, 2015 BCSC 182, the court made its first section 58 judgment. In that case, three testamentary documents were put before the court: a formally executed will and two later documents, one signed by the deceased and one unsigned. The court rejected the third document as a non-binding expression of wishes since it was not signed by the deceased nor provided to her personal representatives.

The Young court articulated a two-prong analysis based on the Manitoba authorities: (1) is the non-compliant document authentic? and (2) does the document record “a deliberate or fixed and final expression of intention as to the disposal of the deceased’s property upon death?” Factors supporting testamentary intention include the presence of the deceased’s signature, the deceased’s handwriting, witness signatures, revocation of previous documents and the title of the document. While this analysis supports a relatively rigorous approach to testamentary intention, it is not clear yet where the boundaries of “stored,” “read” and “capable of reproduction” will fall. A deceased’s electronic devices and computers will require scrutiny and the deceased’s access may be of critical importance in future estate administrations.

In other jurisdictions with similar curative provisions, an electronic document named “Will.doc” that was left on a deceased’s computer with the deceased’s name typed at its end, a testamentary disposition stored on an iPhone, and a DVD recording made by the deceased in contemplation of death and labelled “My Will” have all been admitted to probate (Australia: Alan Yazbek v. Ghosn Yazbek & Anor, [2012] NSWSC 594, Re Yu, [2013] QSC 322 and Mellino v. Wnuk & Ors, [2013] QSC 336). Similarly, a New Zealand court has used its curative provisions to find solicitor’s notes along with an email from the deceased were sufficient proof of the “skeleton for a will” expressing the testamentary intentions of the deceased (Estate of Feron, [2012] NZHC 44).

Already various handwritten lists and annotated copies of wills are emerging where the deceased has died after WESA; the executor does not know which document or documents comprise the will. Indeed, it is quite possible that a “record, document or writing” made subsequent to the will, for example a hand-annotated copy of the will signed again by the deceased or an iPad document with the deceased’s name typed at its conclusion, could purport to change the appointed personal representative, creating an even more difficult set of decisions at the front end of the administration.