PART 5 — WESA Section 58: One of the Most Powerful Estate Litigation Tools in British Columbia
What Is Section 58?
Section 58 of the Wills, Estates and Succession Act has fundamentally changed estate litigation in British Columbia.
Before WESA, a testamentary document that failed to comply with execution requirements often failed entirely.
Today, the Court possesses a broad statutory power to cure defects and validate informal testamentary documents.
For litigants, lawyers, and personal representatives, Section 58 has become one of the most important provisions in modern estate litigation.
Why Was Section 58 Introduced?
The Legislature recognized a recurring problem.
A person’s genuine wishes regarding their estate were often defeated by technical mistakes.
Examples included:
- missing witness signatures;
- errors in execution;
- handwritten amendments;
- incomplete lawyer drafts; and
- documents prepared during medical emergencies.
The purpose of Section 58 is to ensure that genuine testamentary intentions are not defeated solely because of procedural irregularities.
What Can Be Validated?
BC courts have validated:
- handwritten documents;
- incomplete wills;
- unsigned testamentary instructions;
- electronic documents; and
- various records that objectively reflected a deceased person’s final wishes.
The inquiry is intensely factual.
The Court asks:
Did the deceased intend this document to operate as a testamentary disposition?
If the answer is yes, the Court may give the document full legal effect.
Common Litigation Issues
Section 58 applications often involve disputes over:
Capacity
Was the deceased capable of making a will?
Knowledge and Approval
Did the deceased truly understand what the document accomplished?
Undue Influence
Was the document the product of free will?
Authenticity
Can the document be shown to be genuine?
These issues often overlap and require extensive evidence from family members, care providers, lawyers, and medical professionals.
Why Timing Matters
The strongest Section 58 applications are usually built shortly after death.
Important evidence may include:
- medical records;
- care records;
- emails;
- text messages;
- draft documents;
- witness evidence; and
- digital evidence from phones and computers.
The longer a family waits, the greater the risk that critical evidence disappears.
The Practical Lesson
Section 58 is not a way of avoiding proper estate planning.
Rather, it acts as a safeguard where genuine testamentary intentions exist but formal requirements have not been met.
When used properly, it prevents injustice and ensures that substance prevails over technicality.
