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There are also a couple of cases in which a party sought to have interlineations,
strike-outs or deletions recognized as valid under s. 58 of WESA.13
Normally, a will-maker must alter their will in accordance with s. 54. However,
s. 54 anticipates that non-compliant alterations may be cured in accordance
with s. 58.
There is also a handful of cases in which the applicant sought to cure a
written document prepared by someone other than the deceased.14 The
applicants in these cases had mixed success in obtaining an order curing the
deficiencies in the document.
The principle we can draw from the cases thus far is that the court is
most likely to declare valid a document that is prepared by the deceased, is
a physical document that was handwritten or signed by the deceased, and
is a standalone document or an alteration to an existing will. The court is
less likely to grant testamentary status to a document that is contained
within another document (such as an agenda or journal) or that was prepared
by someone other than the deceased.
There are a few cases that are a bit more interesting.
In Re Elphinstone Estate,15 the applicant made a video recording of the
deceased in a hospital that set out a number of bequests and named the person
recording as the deceased’s executor. Unfortunately, the decision does
not decide the ultimate issue of whether the video was a valid testamentary
document, as it merely sets out that the applicant could not act as the
deceased’s executor due to a conflict of interest arising from the video
Horton v. Bruce16 is another interesting case—not because of the form of
the testamentary document, but because of the relief sought. The applicant
sought a declaration that only the revocation clause of the testamentary
document was effective. If the order were granted, the deceased’s estate
would be distributed under the rules of intestacy rather than according to
the dispositions set out in the testamentary document or the deceased’s previous
will. The court granted the order as sought, stating that s. 58 was
broad enough to cure only part of a document, which could itself be considered
a “document” within the meaning of s. 58.
The case that currently goes farthest in curing a testamentary document
is Re Hubschi Estate.17 In that case, the deceased had been placed into foster
care at a young age and was raised as part of his foster family, which
included five siblings. He did not have a formal will. After his death, his foster
brother searched his apartment and located documents that indicated
the deceased had investigated preparing a will. The brother was able to
unlock the deceased’s computer and found a document labelled “Budget for