Executive Summary: Key Legal and Evidentiary Issues

• Scope of the court’s curative power under s. 58 of the Wills, Estates and Succession Act (WESA) to validate informal records as testamentary instruments

• Whether text and email communications from the deceased constituted a fixed and final testamentary intention to remove a beneficiary

• Admissibility and weight of extrinsic evidence in determining the deceased’s testamentary intention at the material time

• Proper interpretation of statutory requirements for revocation or alteration of a will under WESA

• Assessment of the chambers judge’s application of the “fixed and final intention” standard to informal electronic messages

• Impact of informal communications on certainty and predictability in estate planning

 
Facts of the case

Barbara Ann Kissel died on January 7, 2023. She left a will dated August 7, 2014, naming Jennifer Elise Paige and Adrian Joseph Kissel as residual beneficiaries in equal shares, and appointing Michelle Dianne Noel as executrix. Jennifer was the deceased’s goddaughter and had a close relationship with her, though some conflict developed after 2021. In October 2022, the deceased sent two electronic messages to Michelle: a text message on October 6, 2022, stating she had an appointment to redo her will and that “Jennifer is out,” and an email on October 15, 2022, confirming she had met with a notary to convey the changes she wanted. The email stated that the current will would remain in effect until a new one was executed. The deceased did not complete a new will before her death, despite further attempts to do so and communications about her intentions.

Proceedings in the Supreme Court of British Columbia

Michelle Noel, as executor, applied under s. 58 of the Wills, Estates and Succession Act (WESA) to have the text and email recognized as a valid record altering the 2014 will. The chambers judge concluded that the communications reflected the deceased’s fixed and final intention to remove Jennifer as a beneficiary and ordered that the record was fully effective to alter the will. The judge placed significant weight on the evidence of Michelle and her mother, who were not financially interested in the outcome, and found that the deceased’s intention did not waiver from October 2022 until her death. The judge interpreted the deceased’s statement that the current will would stand until a new one was made as not negating her intention to remove Jennifer.

Appeal to the Court of Appeal for British Columbia

Jennifer Paige appealed, arguing that the communications did not represent the fixed and final intention required by s. 58 of WESA and that the judge misapplied the legal standard. The Court of Appeal reviewed the statutory framework and the evidence. It found that while the deceased expressed an intention to remove Jennifer as a beneficiary, the messages themselves did not constitute a fixed and final testamentary intention to alter the will. The deceased intended to effect the change by making a new will, and expressly stated that the current will would remain operative until that was done. The Court found no evidence that the deceased provided instructions to a notary or lawyer after early November 2022, and no evidence that her intention did not waiver up to her death. The Court concluded that the messages were insufficient to meet the requirements of s. 58 of WESA.

Discussion of statutory terms and policy

The case centered on the interpretation of s. 58 of WESA, which allows the court to order that a record, document, or writing be fully effective as a will or alteration if it represents the testamentary intentions of the deceased. The Court emphasized that the document must be intended to operate as a will or alteration, not merely express a future intention to make a change. The Court referenced the legislative history and relevant jurisprudence, including Estate of Young, Hadley Estate, and George v. Daily, to support its interpretation.

Ruling and outcome

The Court of Appeal allowed the appeal and set aside the order below. It held that the text and email did not meet the requirements of s. 58 of WESA, as they did not demonstrate a fixed and final intention to alter the will. The 2014 will remained operative, and Jennifer Elise Paige was restored as a beneficiary. The judgment does not specify any amount for costs or damages, and if any were awarded, the amount cannot be determined from the decision.