The Supreme Court of British Columbia recently contemplated this very question. In the case of Levesque Estate (Re) 2019 BCSC 927, Ms. Levesque wrote a Will in 2009, which divided her estate into seven equal shares among her six children and her eldest grandchild, Ms. Nixon. When Ms. Levesque passed away in 2018, the executors of her Will noticed that Ms. Levesque had used white out to remove Ms. Nixon from among the beneficiaries in her Will. The executors sought the direction of the Court to determine if the alteration of the Will was effective.
In order to amend the terms of a Will in BC, amendments must be carried out in accordance with the Wills, Estate and Succession Act of British Columbia (“WESA”) and a strict procedure must be followed. The procedure necessitates that any alterations or changes be signed by the will-maker and witnessed by two witnesses in the will-maker’s presence.
In Ms. Levesque’s case, the alteration was not made in accordance with WESA because it hadn’t been witnessed. The Court reviewed the evidence and determined that, on the balance or probabilities, it was likely that Ms. Levesque was the only person who had made the alteration to the Will. The Court also determined it was likely Ms. Levesque deliberately applied the white-out to remove Ms. Nixon as a beneficiary after Ms. Nixon eloped without telling her in advance.
The Court then looked to section 58 of WESA, which allows the court to make an alteration to a Will effective as though it had been made in accordance with WESA in the first place. The Court found that Ms. Levesque’s deliberate use of white out in her Will intended to remove Ms. Nixon as a beneficiary and upheld the alteration. As a result, Ms. Nixon did not inherit under Ms. Levesque’s estate.
The costs of the application were paid for from Ms. Levesque’s estate and, it can be assumed, likely exceeded what the cost would have been for Ms. Levesque to have carried out such changes to her Will with a lawyer directly.
When contemplating changes to your Will, it is recommended to consult with an Estate lawyer to ensure the changes are made in accordance with the law. If you make changes to your Will yourself and they are not deemed effective, your estate could end up incurring legal costs to seek a ruling to clarify your intention. Lack of clarity can also cause confusion and upset among your family members regarding what your intentions actually are.
Our Wills, Estate Planning & Trusts group has extensive experience in estate planning, including the drafting of Wills, advising Executors and Trustees, Succession Planning, Trusts, Representation Agreements, Powers of Attorney, Committees and Adult Guardians, Probate & Administration, and Litigation & Disputes. Should you have any questions estate matters, we invite you to contact us.