Jacobson Estate: Testamentary intentions v. strict compliance

September 24, 2020 | Alexander Swabuk

The Supreme Court of British Columbia recently released an important decision regarding the curative powers of section 58 of the Wills, Estates and Succession Act, SBC 2009, c 13 (“WESA”) with respect to the validity of certain gifts.

Jacobson Estate (Re) (2020 BCSC 1280) focused on the intentions set out in the Last Will and Testament of Helga Eileen Jacobson (“Helga” or the “Deceased”) dated November 7, 2014 (the “2014 Will”). For 30 years, Helga was in a “marriage like” relationship with Naida Hyde (“Naida”) before they separated in 2017. Helga did not have any children and her 2014 Will provided that Naida would receive her personal property and the residue of her estate.

Subject to a contrary intention appearing in one’s will, a gift to a spouse is automatically revoked upon a separation (Section 56(2)(a) of the WESA). Prior to Helga’s death, she had consulted with a lawyer regarding the execution of certain documents, including a power of attorney. Helga’s lawyer did not warn her about the impact of section 56(2)(a) of the WESA on her 2014 Will. Following her death, the executor of the will and trustee of Helga’s estate subsequently sought an order under s. 58(2)(b) the WESA to revive the clauses of the will in favour of Naida.

The Supreme Court of British Columbia ruled that the terms in the 2014 Will, including the clauses in favour of Naida, were fully effective and that the 2014 Will would be probated. The Honourable Justice Tucker in Victoria determined that while the deceased did not take the steps necessary to execute a new will (or a codicil), the testamentary intention of the deceased was clear that she intended for Naida to be the beneficiary regardless of their separation three years earlier.

The evidence before the Supreme Court of British Columbia was that the deceased spoke with her lawyer, and was adamant that her spouse was to still receive her estate as per her will, despite the fact that they had separated. The evidence also suggested that the Deceased was not aware of s. 56(2) of WESA and the fact that their separation revoked the gift in her will to her spouse. The court held that had she been aware of this, she would have prepared a new will or codicil to ensure the gifts to her former spouse were effective.

The Honourable Justice Ticker found that Helga’s intentions were stated “repeatedly and unequivocally”, and also stated that, “short of actually executing an effective document, it is hard to imagine how the deceased’s testamentary intention could be established more clearly than it is on the evidence before me.”

In her decision, the Honourable Justice Ticker discussed how the passage of the WESA demonstrates that British Columbia has shifted away from strict compliance and has moved toward a focus on testamentary intentions, with s. 58 of the WESA giving the court a curative power. This shift is a positive development which provides judges the latitude to remedy and carry out the true objectives of the deceased.

If you have any questions, need advice or assistance regarding unintentional disinheritances or the revival of a will, contact Miller Thomson’s estate litigation team.


This blog sets out a variety of materials relating to the law to be used for educational and non-commercial purposes only; the author(s) of this blog do not intend the blog to be a source of legal advice. Please retain and seek the advice of a lawyer and use your own good judgement before choosing to act on any information included in the blog. If you choose to rely on the materials, you do so entirely at your own risk.