A recent decision shows how the Court may find a will-maker’s handwritten changes to be legally effective.
Whiting a Beneficiary Out of a Will
In Levesque Estate (Re), 2019 BCSC 927, Justice Gomery considered whether the whiting out of a beneficiary’s name revoked a gift to that beneficiary.
In 2009, Ms. Levesque made a Will dividing her Estate between her six children and her eldest grandchild, Ms. Nixon. When the Will was read after Ms. Levesque’s death in 2018, however, Ms. Nixon’s name had been whited out. The issue was whether this alteration was legally effective to remove Ms. Nixon from the Will.
Who Whited Out the Beneficiary’s Name?
Justice Gomery reviewed the circumstances surrounding the Will, and concluded that Ms. Levesque herself had whited out Ms. Nixon’s name.
Until June of 2018, Ms. Levesque kept the Will in an envelope in a drawer of her nightstand. It was “highly unlikely” that anyone else would have had access to the Will.
In 2018, Ms. Levesque moved in with her daughter and asked that the nightstand be brought to her. The envelope was then placed in a drawer at the daughter’s house.
After Ms. Levesque died, her daughter opened the sealed envelope and found that the Will had been altered. It was “highly unlikely” that the alteration was made by a third party while it was in the possession of Ms. Levesque’s daughters. The most likely answer was that it was Ms. Levesque herself who had altered the Will.
Deliberate or Fixed and Final Intentions
The judge then considered whether the alteration was effective.
Under s. 54 of the Wills, Estates and Succession Act, alterations made after a will is signed must be signed by the will-maker, whose signature must be witnessed by two witnesses in each other’s presence and in the presence of the will-maker. These requirements are not necessary in certain circumstances, however, including where the alteration is not substantive, where the alteration makes the text illegible, or where an order is made under s. 58.
Here, the alteration was substantive: it removed Ms. Nixon as a beneficiary. In addition, the text could be read by holding the Will up to the light. As such, for the alteration to be effective, s. 58 had to apply.
Section 58 allows the Court to order that a document that does not comply with the legislative requirements is nonetheless effective to carry out the deceased’s intentions. This includes a power to order that a writing or marking on a will represents the deceased’s intention to alter a will. If so, then even if the alteration does not comply with the WESA, the Court may order that a writing or marking on a will is fully effective. To do so, the Court must be satisfied of two elements:
- that the document is authentic; and
- that the document represents the deliberate or fixed and final intentions of the will-maker as to how their property is to be disposed of on death.
In Levesque Estate, the judge held that this test was met. The alteration was made by Ms. Levesque and was a deliberate act:
[33] Carefully dabbing white-out over the provision in question was undoubtedly a considered and deliberate act on the part of the Deceased. She was applying the white-out to the original Will. It was not a casual act. The only reasonable inference is that her intention was to remove the provision from the Will.
…
[36] … The facts I am left with are that the Deceased made the Alteration deliberately, in the knowledge that she was altering the original Will, with the intended effect that Ms. Nixon was removed as a Beneficiary.
There was evidence that Ms. Nixon had eloped with her boyfriend. When Ms. Levesque learned of the marriage, she was surprised and upset that she had not been told. The judge reasoned that Ms. Levesque had likely whited out Ms. Nixon’s name after she learned of the marriage.
As the parties had been forced into litigation by Ms. Levesque’s conduct, all parties were entitled to their costs from the Estate.
Levesque Estate demonstrates how the courts will approach handwritten changes to wills. Given the “tendency of will makers to ignore the requirements of the statute” (Levesque Estate at para. 35), there are likely to be other cases considering whether handwritten changes to a will are effective, even if they do not comply with all formal requirements. In addition, however, the case serves as an important reminder regarding the importance of seeking professional assistance to update a will; amendments made after a will is signed can easily trigger expensive litigation and unfortunate family disputes.
For assistance with your estates matter, please contact a member of Clark Wilson LLP’s Estates & Trusts Practice Group.
