Rempel Estate v. Dudley: Curative Powers found within the Wills, Estates and Succession Act, SBC 2009, c 13

December 1, 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 non-compliant documents that constitute a deceased’s testamentary intention. In Rempel Estate v. Dudley (2020 BCSC 1766), the Canada Trust Company (“Canada Trust“), in their capacity as Administrator of the Estate of Mr. Gregory Allan Rempel (the “Estate”), petitioned the Court for an order under s. 58 of WESA that certain documents in digital form represented the testamentary intentions of the deceased, Mr. Gregory Rempel (“Mr. Rempel” or the “Deceased”), who passed away on March 2, 2015.

Mr. Rempel was not survived by a spouse, nor did he have any children. He was also predeceased by his father and predeceased by his only sibling, Gary. Mr. Rempel was however survived by his mother, Ms. Susan Rempel of Saskatoon who died 18 days after Mr. Rempel’s death, on March 20, 2015, at 97 years of age. On December 23, 2015, Canada Trust was appointed executor of the estate of Ms. Susan Rempel.

A wills search for Mr. Rempel conducted in the records of the BC Vital Statistics Agency by Canada Trust failed to identify any will recorded for Mr. Rempel. A search of Mr. Rempel’s personal records and computer devices located in his home at the time of death also failed to locate a formal executed will. The search wasn’t a complete failure, as Canada Trust was able to locate several paper and electronic documents that indicated that Mr. Rempel had been actively working towards completion of a formal will.

The specific documents found were contained on two memory sticks, the first of which contained recordings, including a voice memorandum created by Mr. Rempel and recordings of several telephone conversations between Mr. Rempel and a notary public.

The second memory stick contained file folders and sub-folders created by Mr. Rempel that held electronic drafts of documents which potentially express Mr. Rempel’s testamentary intentions in the event he died without a will. More specifically, the latter documents included will instruction client questionnaire forms, i.e., drafts of information then sought by a notary public, presumably with the eventual intent to prepare a will.

Findings and Key Takeaway

The Honourable Justice Jenkins determined that in order to be a testamentary document capable of being “cured” under section 58, the document in question must record a deliberate or fixed and final expression of the deceased’s intention regarding disposal of his/her property on death.

The formality, comprehensiveness, substance, and express provisions outlined in same were factors to be considered in making this decision, and based on the evidence provided, the Honourable Justice Jenkins concluded that one of the folders on the second memory stick found by Canada Trust favored a declaration of being a testamentary document worthy of being “cured” on behalf of the Deceased.

Accordingly, the Honourable Justice Jenkins concluded that the firm and final wishes of Mr. Rempel regarding his estate and his wishes relating to bequests were reflected in the unsigned electronic document, and subsequently cured same in accordance with section 58 of WESA.

This case is another example of how section 58 of WESA represents a marked departure from the formalities for execution which had been previously required in British Columbia under the Wills Variation Act, RSBC 1996, c.490. It also demonstrates a key component of the modernization of the law of wills and succession in British Columbia as section 58 empowers the court to uphold the will-maker’s true intentions even where the will, a gift under the will or a purported alteration or revocation of the will is invalid pursuant to other provisions of the WESA.

If you have any questions, need advice or assistance upholding ones testamentary wishes or regarding curative provisions of the WESA, contact Miller Thomson’s estate litigation team.

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