THE ADVOCATE 527
VOL. 78 PART 4 JULY 2020
WILL OR WILL NOT:
PRACTICE IMPLICATIONS OF SECTION 58
OF THE WILLS, ESTATES AND
WHAT IS A TESTAMENTARY DOCUMENT ANYWAY?
By Jennifer Bednard
With the coming into force of the Wills, Estates and Succession
Act1 (“WESA”), British Columbia joined a number of
other Canadian jurisdictions in implementing a curative
provision for wills that do not comply with the formal
requirements of wills execution. Section 58 of WESA allows a court to make
an order that a document represents the testamentary intentions of a
deceased person and that the document should be fully effective to make,
alter or revoke the will of the deceased person.
When a client comes to a lawyer for assistance in administering an estate,
the lawyer must inform that client about the effect of s. 58 of WESA and
advise that client to preserve any documents that might qualify as a testamentary
document. What should that lawyer advise their client to look for,
and if the client finds such a document, what comes next?
The formalities of will execution, imposed by statute, are not only formalities;
the requirements for the execution of a will fulfill a number of roles: an evidentiary
and cautionary role, a channeling role and a protective function.2
The evidentiary and cautionary role is most important at the time of the
will’s execution. The will-making formalities are intended to impress upon
the will-maker and the witnesses a sense of solemnity and legal significance.
At the same time, the formalities ensure that two disinterested parties
witness the will-maker’s signature and that both the document and the
circumstances of its execution will be evidence available to a court.3 In
George v. Daily,4 the Manitoba Court of Appeal identified the cautionary and