THE ADVOCATE 529
VOL. 78 PART 4 JULY 2020
(c) the intention of a deceased person to revoke, alter or revive a
testamentary disposition contained in a document other than a
(3) Even though the making, revocation, alteration or revival of a will
does not comply with this Act, the court may, as the circumstances
require, order that a record or document or writing or marking on a
will or document be fully effective as though it had been made
(a) as the will or part of the will of the deceased person,
(b) as a revocation, alteration or revival of a will of the deceased person,
(c) as the testamentary intention of the deceased person.
(4) If an alteration to a will makes a word or provision illegible and the
court is satisfied that the alteration was not made in accordance with
this Act, the court may reinstate the original word or provision if
there is evidence to establish what the original word or provision
It is immediately clear that there is a broad scope for what can qualify as
a testamentary document, as the list in s. 58(1) is phrased in non-exhaustive
terms. The term “record” explicitly anticipates that a document in electronic
form may become a valid testamentary document. This definition
may even be broad enough to include audio or audiovisual recordings,
which can be stored electronically and can be reproduced in visual form (in
the form of a transcript). Indeed, it is difficult to conceive of a form of permanent
media that would not be captured by this definition of “record”.
NO MINIMUM COMPLIANCE
The second notable thing about s. 58 is that it does not require any degree
of compliance with the formal requirements for the creation and execution
of a will set out in s. 37 of WESA, as long as the court is satisfied that the
record represents the testamentary intentions of the deceased person.
Though it may seem odd that the court may rectify a document that complies
in no way with the accepted format and execution of a will, the case
law in other jurisdictions shows that a rectification provision must be broad
if the legislature’s intention is to give effect to the wishes of the deceased.
Legislation that requires even minimal compliance with the formalities of
execution can seriously curtail the court’s ability to give effect to the wishes
of the deceased.
Alberta is an example of a jurisdiction in which the will rectification provision
requires at least some compliance with the formal requirements of a
will. The document must be signed by the deceased, witnessed by two persons
who sign the will, written entirely in the deceased’s writing or made