Electronic Wills and Section 58 WESA
M
uch of the legal profession and general public do not realize that the age of electronic/digital Wills is already upon us.
Section 58(1) WESA reads as follows. In this section, “record” includes data that 1) is recorded or stored electronically; 2) can be read by a person; and 3) is capable of reproduction in a visible form. The term “record” explicitly anticipates that a document in electronic form may become a valid testamentary document. The definition may even be broad enough to include audio or audiovisual recordings that can be stored electronically and can be reproduced in visual form in the likes of a transcript. The definition of record may well involve many forms of permanent media.
British Columbia Law The case that goes the furthest in curing a testamentary document that was in electronic form is Hubschi Estate 2019 BCSC 2040. A terse message found on the deceased’s computer was “cured” under section 58 WESA and found to be a valid Will.
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Specifically, the Court found that the electronic Microsoft Word document found in the deceased’s password-protected personal computer after his death was the last Will of Mr. Hubschi.
A terse message found on the deceased’s computer was “cured” under section 58 WESA and found to be a valid Will. The Court application was unopposed but the Judge thoroughly reviewed the law under section 58 WESA. The computer message was found on the deceased’s computer labelled “Budget for 2017” and read as follows.“Get a Will made out at some point. A 5-way assets split for remaining brother and sisters. Greg, Annette, or Trevor as executor.” As the document was “cured” by the Court pursuant to section 58 WESA, the deceased’s assets were to be distributed to the foster siblings that he grew up with in accordance with the intention set out in the document. Had the document not been “cured,” the deceased would have died intestate, and his assets would have been distributed to blood relatives in Switzerland with whom he had no relationship, in accordance with section 23 WESA. BC Notaries Association
Photo credit: Matthew Chen
WILLS AND ESTATES
Trevor Todd
The deceased was given up at birth and at age 3 was placed in a foster home in which he grew up with the five siblings to whom the Court divided his estate equally. He died without any children, nor did he marry. The Court strongly implied that closeness of the beneficiaries will be a factor to be considered as the Court is very cognizant the deceased’s estate would have gone to relatives he had no relationship with as opposed to his foster siblings with whom he had a close relationship until his death. An intestacy would have clearly NOT reflected the deceased’s final wishes. The Court also found particularly significant that the deceased had reviewed the “Budget for 2017” the day of his death, and he modified it that same day. That supported the inference that the document reflected the deceased’s wishes as of the date of his death, and demonstrated a fixed intention, even though the words ”get a Will done at some point” on the face of it suggested a lack of a fixed and final intention.
Section 58 WESA Section 58 WESA allows the Court to make an order that a “record, document, or writing or marking on a Will or document” represents the testamentary intentions of the deceased person, even though the making of the Will does not comply with WESA. Volume 29 Number 4 Winter 2020
