In British Columbia, section 37(1) of the Wills Estates and Successions Act provides a valid will must be:
- in writing;
- signed at the end by the will-maker (or the signature at the end must be acknowledged by the will-maker as their own, in the presence of two or more witnesses), and
- signed by at least two witnesses in the presence of the will-maker.
To incorporate a document into an otherwise complete and valid will, the document must be:
- in existence when executing the Will; and
- Undoubtedly, there is a reference to the document in the Will.
Before enacting the Wills Estates and Successions Act in 2014, will-makers had to adhere to certain formalities strictly. These formal requirements sometimes prevented the legitimate intentions of a will-maker from being executed even when the testator clearly stated their intentions.
Curing deficiencies
Section 58 of the Act gives the Court a broad discretion to admit to probate a document that does not otherwise meet the formal requirements for creating a Will. It also allows the Court to incorporate a particular document into a will, thereby validating part of a will. To use the language of s58, the Court can cure the deficiencies of an otherwise invalid will.
Section 58 of the Act grants the Court the ability to prevent the consequences of non-compliance with testamentary formalities standing in the way of the final intentions of a deceased person. Wills Estates and Successions Act (“the Act”) was introduced in March 2014 to address this issue.
Additionally, s58 of the Act empowers the Court to cure deficiencies that would otherwise invalidate a will. To obtain such an order, the petitioner must prove, on a balance of probabilities, that the document said to be the Will is authentic. It contains the will-maker’s full, final, and fixed intention at the material time. The Court considers various factors, such as whether the document was written by the deceased, where the petitioner found the Will, the language used, and whether it is rational and consistent with other evidence of the deceased’s intentions.
Relevant factors that the Court may weigh in its decision include the presence of the deceased’s signature, handwriting, signatures of two witnesses, funeral arrangements, particular bequests, mention or revocation of previous wills, and the document’s title. While no minimum level of formality exists, the further a document deviates from the formal requirements of a Will, the more difficult it may be for the Court to conclude that it accurately represents the deceased’s testamentary intentions.
Background
James Christopher Salisbury passed away on April 16, 2022. He left behind his wife, Hiedi Salisbury, and five children. They lived at the resort with their five children near Mackenzie, approximately 195 kilometres north of Prince George. Mr. Salisbury and Mrs. Salisbury each owned 50% of the ordinary shares in a holding company.
The holding company, in turn, owned an operating company responsible for the Powder King Mountain Resort near Mackenzie, B.C. The resort boasts the best snow quality of all Canadian ski hills. Powder King Resort Inc. also runs a campground and store at nearby Azouzetta Lake and a gravel pit in the District of Mackenzie.
The process of creating a will started eight months before Salisbury’s death, and it took half of that time to decide whether to create a family trust. By late February 2022, Salisbury decided to opt for wills instead of a trust while also informing his lawyer about his health issues, which he said were not life-threatening.
In Mr Salisbury’s case, he provided instructions to his lawyer in 2021 and early 2022. The lawyer prepared a primary and secondary will (the latter to deal with the disposition of Mr Salisbury’s shares in his companies) to leave all of his assets to Mrs Salisbury. Salisbury had prepared two wills, a primary and a secondary, for his review. Unfortunately, Mr Salisbury passed away before he could sign the wills due to his rapidly deteriorating health. Heidi Robyn Salisbury, with whom he had been married for nearly 20 years.
The matter
A petition was filed on August 14, 2022, in the B.C. Supreme Court requesting declarations regarding the testamentary intention of the deceased part-owner of Powder King Mountain Resort. The petition sought to hand over the operation’s reins to Mr Salisbury’s wife, who is now widowed. The two unsigned wills are the subject of the petition.
Mrs Salisbury (the petitioner) filed a petition in the B.C. Supreme Court requesting a declaration that both the unsigned primary and secondary wills were valid under section 58 of the Act. She argued that Mr. Salisbury had been consistent in his instructions for the preparation of his wills. The wills represented his testamentary intentions despite being unsigned.
The petitioner submitted that Mr Salisbury had been working on his Will when his health took a turn for the worse. Following his admission to a hospital in Prince George on April 1, 2022, he was intubated, sedated, and flown to a hospital in Vancouver. He was subsequently diagnosed with cancer, and on April 16, 2022, he stopped receiving life support.
If the will-maker and two witnesses do not sign a written will, the Court can still deem it valid based on other records, including those stored electronically. The petition refers to several videoconferencing meetings between Salisbury and his lawyer.
The decision
On November 6, 2023, the Court agreed and declared both unsigned wills valid based on Mrs. Salisbury’s petition. Since then, Powder King Resort has been for sale with an asking price of $7,495,000.
The outcome of this case illustrates the remedial powers of the Courts. When a deceased person comes close but does not create a will that meets the strict legal requirements, the Court can cure the deficiencies. In the past, a will had to be in writing, signed at its end by the will-maker in the presence of two or more witnesses, and signed by those witnesses. If the document did not meet these technical requirements, it was legally invalid, often resulting in unfortunate and unfair outcomes.