A Change of Mind: When a Testator Alters Their Will
In a case decided earlier this year, the British Columbia Supreme Court discussed the implications of a testator altering his or her will after the will has been made.
In Levesque Estate (Re), 2019 BCSC 927, the testatrix made a will nine years before her passing. At some point during the time between the creation of her will and her death, the testatrix used white-out to remove her granddaughter’s name from the list of beneficiaries. The executors of the will sought advice from the court on whether or not the words obscured by the white-out had effectively been removed from the will.
How to Alter a Will
Section 54 of the Wills, Estates and Succession Act, SBC chapter 13 (WESA) provides directions on how to alter a will after it has already been made. Section 54 stipulates that alterations to a will should be made pursuant to the same rules under which a valid will is made. That means the alteration must be signed by the will-maker, and additionally, the signature of the will-maker must also be witnessed by two others. In Levesque, the granddaughter’s name had been covered with white-out, but was still legible. Further, the whited-out portion of the will had not been signed by the will-maker or by witnesses, making it unclear whether it was the intention of the testatrix to remove her granddaughter from her will.
“Curing” an Invalid Will or Alteration
The court affirmed that where an alteration does not meet the requirements in s.54, executors may be required to obtain a court order pursuant to section 58 of WESA. Section 58 allows the court to “cure deficiencies” in a will. This means that the court has the power to declare a will, or an alteration to a will effective, even though it does not technically meet the formal requirements set out in WESA. The court decided in the landmark case Estate of Young, 2015 BCSC 182 what factors are to be considered when determining if a will or alteration ought to be cured under s.58.
There are two factors to consider:
- Whether the document is authentic; and
- Whether the will or alteration represents the deceased’s testamentary intentions.
In Levesque, the court found that the will was authentic given that it had been safely stored and retained by the testatrix for the years leading up to her death. In determining whether the alteration represented her testamentary intentions, the court considered several issues. There was no evidence to suggest that the testatrix was not of sound mind, and additionally, using white-out to remove her granddaughter’s name from the list of beneficiaries was taken as a considerate and deliberate act. The court also considered whether there may have been a reason for removing her granddaughter’s name which could have explained her intentions.
It was eventually determined by the court that it had, in fact, been the testatrix’s intention to remove her granddaughter from her will. Evidence was provided which indicated the testatrix was angry at her granddaughter, and that this spoke to the intention of the testatrix to remove her granddaughter. The alteration was upheld as a valid portion of the will, despite it being made incorrectly.
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