Introduction
Can a text message sent by a will-maker alter a will? In Paige v Noel, 2025 BCCA 358 (“Paige”), the British Columbia Court of Appeal considered whether text messages and emails (the “Messages”) expressing an intent to disinherit a beneficiary were sufficient to alter a will under s. 58 of British Columbia’s Wills, Estates and Succession Act, SBC 200, c 13 (“WESA”).
Pursuant to s. 58 of WESA, a court can declare a record or document to be fully effective as a will or an alteration or revocation of a will, even if that record or document does not meet the formal requirements under the statute. To exercise this curative power, the court must be satisfied that a record or document:
- is authentic; and
- represents the deceased’s fixed and final testamentary intention.
Courts may consider extrinsic evidence of the deceased’s intent, including events before or after the document was made. Exercising s. 58’s curative power primarily involves an analysis of whether a document represents the deceased’s testamentary intent, at the time the document was created.
Paige offers important guidance regarding the scope of s. 58’s curative power and clarifies what types of documents can reflect a deceased’s “fixed and final intentions.”
What were the key facts in Paige?
The deceased’s will named her goddaughter (the appellant) as a residual beneficiary. However, the deceased later expressed a desire to disinherit the appellant, and sent text messages to the executor named in her will stating her intention to prepare a new will and remove the appellant as a beneficiary.
Shortly thereafter, the deceased sent an email to her executor, explaining that she had met with a notary and decided not to destroy her current will immediately, to avoid dying intestate. Instead, she chose to keep her existing will until it could be revoked by a new, formally drafted will.
The deceased scheduled another appointment with a notary, which was later cancelled for health reasons. Two months after that cancellation, the deceased contacted her neighbour, a lawyer, to make what she described as a “very minor change” to her will. Unfortunately, the deceased passed away before the amendments were made.
Why did the chambers judge consider the messages as a “fixed and final intent”?
The chambers judge concluded that the Messages reflected the deceased’s “fixed and final intention” and could therefore operate to alter her will under s. 58 of WESA. This finding was supported by the steps taken by the deceased to formalize her intent before death. The judge reasoned that the deceased’s statement that the current will would stand was merely an effort to prevent the deceased’s estate from being distributed under intestacy laws, should she die before completing a new will.
In making this decision, the chambers judge found that the Messages were sufficient to express testamentary intent. The chambers judge found that the deceased consistently stated her intent to disinherit the appellant, actively pursued steps to effect that change, and was prevented from completing a new will by circumstances beyond her control.
Why did the Court of Appeal reject the messages?
The chambers decision was overturned on appeal. The Court of Appeal held that the deceased did not intend the Messages to operate as a will or any other legally effective testamentary disposition.
This ruling significantly narrows the circumstances in which a document may be considered a deceased’s fixed and final intent. The Court of Appeal emphasized that the informal nature of digital communications, such as text messages and emails, does not, on its own, demonstrate an intention for those documents to have a binding legal effect.
The Court of Appeal also considered extrinsic evidence to assess the deceased’s state of mind when sending the Messages.
The Court of Appeal further emphasized the deceased’s statement that her existing will would remain in effect until formally replaced. The Messages, which referenced creating a new formal will, indicated that they were not intended to serve as testamentary dispositions themselves. The deceased understood the formal process required to execute a new will, and the Messages did not meet the threshold required to constitute testamentary intent in these circumstances.
For a document to qualify under s. 58, the deceased must intend for the communications themselves to have testamentary intent. The informality of electronic communication, akin to notes written on scrap paper, suggest impermanence rather than a “fixed and final intention.” The Court of Appeal reasoned that “the fact that these communications were recorded in an electronic record does not transform a casual conversation into a legally operative testamentary record unless the content of that conversation demonstrates a fixed and final intention to effect a testamentary disposition.”[1]
What is the key takeaway?
It is not enough that a deceased expressed, in texts or emails, an intention to change their will. Those messages themselves must be intended to change a will.
A fixed and final intent means “an intention that the document represents the testamentary intention of the deceased at the material time,” not “an unwavering stated intention” as interpreted by the chambers judge.[2] An intention that a document represents testamentary intent means “that the deceased must have intended the Messages to effect her intention to remove the appellant as a beneficiary.”[3]
To invoke s. 58’s curative power, a document must be intended to operate as a will or to alter or revoke an existing will. A mere written statement of intent, as the Court of Appeal characterized the Messages, does not meet this standard. Expressing an intention to disinherit the appellant is fundamentally different from creating a document intended to effect that change. The Messages only informally conveyed a desire to act; they were not sufficient indicators of “fixed and final intent”. As noted by the Court of Appeal, “the deceased intended to effect that alteration by making a new will.”[4]
Conclusion
Paige marks an important clarification in the limits of s. 58 of WESA. While the provision grants courts a broad curative power to give effect to a deceased’s testamentary intentions, this decision emphasizes that not every expression of intent will suffice.
For a document to alter a will, the deceased must intend the document itself to operate as a testamentary disposition with legal effect, not merely as a record of future plans.
To learn more about how courts approach informal records under s. 58 of WESA, or to review your estate plan, contact a member of our Private Client Services or Estates and Trusts Litigation team.
[1] Paige at para 43.
[2] Ibid. at para 45.
[3] Ibid.
[4] Ibid. at para 52.
