Section 58 of WESA — BC's Curative Power for Non-Compliant Wills

Section 58 of British Columbia's Wills, Estates and Succession Act (WESA) is one of the most significant innovations in Canadian wills law in recent decades. It gives BC courts the power to validate documents that don't strictly meet formal will requirements, provided the document represents the deceased's testamentary intentions.

The statutory text — what section 58 says #

Section 58 of WESA provides (paraphrased; see official text linked below):

The court may make an order on application if the court determines that a record, document, or writing or marking on a will or document represents:

• (a) the testamentary intentions of a deceased person,
• (b) the deceased's intention to revoke, alter or revive a will or testamentary disposition, or
• (c) the deceased's intention to revoke, alter or revive a testamentary disposition contained in a document other than a will.

The court can order the document to be effective accordingly.

The official BC government text is at BC Laws; the CanLII version is at CanLII.

Why section 58 exists #

Before WESA (in force 2014), BC followed strict formal requirements for Will validity. A document not properly signed and witnessed was simply not a Will, even if everyone knew it represented the deceased's wishes. This produced harsh results when:

• Testator started a Will but didn't formally execute before death
• Testator signed a Will but witnessing was defective
• Testator wrote clear instructions but didn't realize formal Will execution was required
• Testator made changes by handwritten notes on an existing Will

Section 58 gives courts the discretion to validate these documents if the deceased's intent is clear.

The leading case — Estate of Young #

Estate of Young, 2015 BCSC 182 is the foundational BC case interpreting section 58. It established the analytical framework that has been followed in subsequent decisions.

The court adopted reasoning similar to Manitoba's curative provision (under Manitoba's Wills Act) as interpreted in George v. Daily (1997) (Manitoba Court of Appeal).

The two-part test #

For a document to be cured under section 58:

1. Authenticity — The document must be authentic. Is it actually from the deceased? Not fabricated by someone else.

2. Testamentary intent — The document must represent the deceased's full, final, and fixed expression of how their property should be disposed of on death.

Both must be established on balance of probabilities.

Material time #

The Estate of Young framework recognized that the material time for determining testamentary intent on a section 58 application is usually the time the document was created. However, depending on circumstances, the testator may have manifested fixed and final intent later through words or actions.

For example, a draft Will sitting in a drawer for years may not represent testamentary intent if the testator never finalized it. But the same draft Will, accompanied by recent statements by the testator that "this is what I want," might.

Subsequent BC application #

Quinn Estate, 2018 BCSC 365 is a leading subsequent case that followed Young and further developed the framework. The decision is available at CanLII.

Many additional BC cases have applied section 58 to various scenarios — handwritten notes, draft documents, electronic communications, modifications to existing Wills. The general pattern:

Easier to cure:

• Document with clear testamentary language ("I leave my property to...")
• Signed by the testator (even if not witnessed)
• Recent in time
• Consistent with testator's known intentions
• Specific and clear about disposition

Harder to cure:

• Document with ambiguous language
• Unsigned drafts
• Old documents without recent reaffirmation
• Inconsistent with other expressed intentions
• General or vague disposition

Practical implications #

For testators #

Don't rely on section 58 as substitute for proper execution. Section 58 is a backstop, not a Plan A. A properly executed Will avoids the litigation and uncertainty of a section 58 application.

If you've made testamentary instructions outside a formal Will, be aware those might be cured under section 58, but cases are fact-sensitive and litigation may be required.

For executors and beneficiaries #

If a non-compliant document exists and you believe it represents the deceased's intent, section 58 application is possible. Consult a BC estate lawyer.

Time-sensitive procedures apply; specific to circumstances.

For challengers #

Document that purports to be a will but isn't formally executed can still be advanced under section 58 by the party who would benefit. Don't assume non-compliance automatically defeats it.

Conversely, an apparently testamentary document might not actually represent the deceased's intent — testator may have drafted as a planning exercise, not as final intention. Specific evidence about testator's state at time of document creation matters.

Section 58 vs section 59 (rectification) #

Section 58 — validating a document as a will despite formal non-compliance.

Section 59 of WESA — rectifying errors in a will. If a will is formally compliant but contains an error (typo, omission, misstatement) that doesn't reflect the testator's intent, section 59 lets the court correct it.

Different sections for different problems. Both are remedial powers under WESA.

Comparison to other provinces #

Ontario — Has a substantial compliance provision under Succession Law Reform Act amendments. Similar in concept but specific rules differ.

Manitoba — Has a long-standing curative provision (the model BC partly followed via George v. Daily).

Alberta, Saskatchewan, others — Have variations of substantial compliance or curative provisions.

Each province operates somewhat differently. Provincial-specific law and case law govern.

What we focus on at It's Simple Will #

The Will Creator produces properly executed BC Wills following formal WESA requirements. Section 58 is a backstop for cases where formal execution went wrong — we aim to make formal execution easy enough that the backstop isn't needed.

Related guides #

• Substantial compliance Ontario
• Make a Will legally binding in Canada
• Provincial Wills Notice registries
• Holograph Will examples Canada