In November 2023, a justice of the B.C. Supreme Court made an order declaring that an unsigned will was valid despite it not being signed as it was found to represent the deceased's testamentary intentions.
On April 16, 2022, James Christopher Salisbury ("Mr. Salisbury") passed away, leaving behind his wife, Hiedi Salisbury ("Mrs. Salisbury"), and five children. Mr. and Mrs. Salisbury each owned 50% of the common shares in a holding company which in turn owned an operating company that owned and operated the Powder King Mountain Resort near Mackenzie, B.C. Powder King purportedly boasts the best snow quality of all Canadian ski hills.
The outcome of this case illustrates the remedial powers now reposed in the courts where a deceased came close to but did create a will that meets the strict legal requirements. In the past, to be valid a will had to be in writing, signed at its end by the will-maker in the presence of two or more witnesses all present at the same time, and signed by those witnesses. If a document that was clearly meant to be the testamentary wishes of a deceased did not meet these technical requirements, it was legally invalid. This often resulted in unfortunate and unfair outcomes.
However, with the introduction of the Wills Estates and Successions Act ("WESA") in March 2014, the court now has a remedial power to cure deficiencies that would otherwise invalidate a will. Under section 58, the court can "order that a record or document or writing or marking on a will or document be fully effective as though" it were a properly executed will. To obtain such an order, you must prove, on a balance of probabilities, that: (1) the document said to be the will is authentic; and (2) it contains the full, final and fixed intention of the will-maker at the material time. As you can imagine, each case is factually distinct but factors the courts look at include whether the "document" was written by the deceased, where it was found, the language used and whether it is rational and consistent with other evidence of a deceased's intentions.
In Mr. Salisbury's case, he had provided instructions back in 2021 and early 2022 to his lawyer, who 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. Unfortunately, due to Mr. Salisbury's rapidly deteriorating health, he passed away before signing the wills.
Mrs. Salisbury commenced a petition in the B.C. Supreme Court seeking a declaration that both the unsigned primary and secondary wills were valid pursuant to section 58 of the WESA. Mrs. Salisbury argued that in all of his communications with his lawyer, Mr. Salisbury was consistent in his instructions for the preparation of his wills. Though unsigned, the wills represented his testamentary intentions. The court agreed and on November 6, 2023, declared both unsigned wills to be valid on the basis set out in Mrs. Salisbury's petition. Since then, Powder King Resort has been up for sale with the asking price of only $7,495,000.
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