What Is the Dispensing Provision Under the WESA?
The intent of the Wills, Estates and Succession Act (“WESA“) has been to honor the full wishes of the testator in their will. However, in order to do so, the Act has created a dispensing provision that gives power to the courts to determine what constitutes a valid will.
Under Section 58 of the WESA, the court can order that a record, document, writing, etc., is permissible as a will, despite the lack of formal requirements. Under the act:
- A record may include documentation/data that is recorded electronically, can be read by another, and can be reproduced;
- Such records can be used to determine the testamentary intentions of the deceased or the intentions of the deceased to revoke, alter, or revive a will that previously existed, or to revive, alter, or revoke a part of the will;
- Even in circumstances that do not meet formal validation requirements, the court may order that a record be made fully effective as part of an entire will; and
- If such an alteration would make a will in part or whole illegible, the court may reinstate the original word/provision to establish the will as it previously stood.
Considerations Under the Dispensing Provision
Though the dispending provision gives leeway to the courts to determine whether a will is valid or not, it also has opened up some concerns on the estate planning side of things. Now, families must consider informal documents that loved ones have kept that may hold more estate wishes than realized.
For example, families need to consider the following:
- Informal documents created prior to finalizing a will. This is of particular importance if the will-maker was in poor health at the time the will was finalized. In some cases, the testator’s original wishes may have been superseded by the urgency to have an estate plan in place.
- Handwritten notes by testators should be notarized, not attached to the original will. This will help confirm the wishes as often, notes written on a will are difficult to validate.
- Online documentation may not look like a formal will but may be intended to serve as one. Email documentation is difficult though, because the court may deem the email to be the will, not an edit to a provision within it.
- If a client has approved a will sent via email, lawyers can ask the client to communicate that should the will not be signed in person before death, this electronic document is to be considered their final will.
- Should a will be formally updated, it will override any informal changes made before that time.
While Section 58 has many benefits, it can also complicate the wills variation process for British Columbia families. But knowing you have a law firm ready and equipped to handle your needs can make all the difference.
Contact a British Columbia Wills Variation Lawyer Today: Klein Lawyers
If you have concerns about Section 58 provisions of the WESA, Klein Lawyers can help. Our lawyers serve clients throughout British Columbia in wills variation cases, and we can help you dispute a will to get the maintenance and support you deserve.
Please call (604) 874-7171 today for a free consultation. Our wills variation lawyers serve spouses in Vancouver, Abbottsford, Burnaby, Coquitlam, Langley, Surrey, and other areas of British Columbia.