The decision in Hubschi Estate, 2019 BCSC 2040, illustrates three significant points concerning the application of section 58 of British Columbia’s Wills, Estates and Succession Act, which allows the Supreme Court of British Columbia to give effect to a document or record that does not comply with the formal signing and witnessing requirements for a valid will. First, the case illustrates the importance of the factual context including the relationships between the deceased and the beneficiaries. Secondly, this case confirms that the court may give effect to a digital record on a computer. Thirdly, the maker of the document need not have intended that the specific document or record to operate as a will.

Beat George Hubschi died in June 2017, without a formal signed and witnessed will. He did not have a spouse or children. His mother left him in the care of the Children’s Aid Society of the Catholic Archdiocese of Vancouver at the age of three. He did not have contact with her after that, nor with her relatives. He grew up in the home of Mary and Jack Stack under a foster home agreement. They treated him as their own, and they had five children, who treated him as a brother. Mary Stack, who died in 2011, including him among her children in her will. However, he was never adopted.

After his death, one of the Stack children, Gregory stack found the following records on Mr. Hubschi’s computer:

a. “Budget for 2017”
b. the document called Budget for 2017 included the following:

Get a will made out at some point. A5 – way assets split for remaining brother and sisters. Greg, and at or Trevor as executor.

Mr. Hubschi had surgery for problems in his legs and died 22 days after he was discharged from the hospital. He was in pain after his discharge, lived alone, and did not leave his home.

Greg Stack applied to court to give effect to the computer record as Mr. Hubschi’s testamentary intentions. If successful, the estate would be divided equally among the five Stack children. If not, then it would go to Mr. Hubschi’s intestate heirs. Mr. Hubschi’s biological mother had died before him, and the closest living biological relatives appear to be his aunt and a cousin, both of whom lived in Switzerland, and were sent notice of the application, but did not appear to oppose it.
Section 58 (1) through (3) provides:

58 (1) In this section, “record” includes data that:

(a)is recorded or stored electronically,
(b)can be read by a person, and
(c)is capable of reproduction in a visible form.

(2) On application, the court may make an order under subsection (3) if the court determines that a record, document or writing or marking on a will or document represents

(a)the testamentary intentions of a deceased person,
(b)the intention of a deceased person to revoke, alter or revive a will or testamentary disposition of the deceased person, or
(c)the intention of a deceased person to revoke, alter or revive a testamentary disposition contained in a document other than a will.

(3) Even though the making, revocation, alteration or revival of a will does not comply with this Act, the court may, as the circumstances require, order that a record or document or writing or marking on a will or document be fully effective as though it had been made

(a)as the will or part of the will of the deceased person,
(b)as a revocation, alteration or revival of a will of the deceased person, or
(c)as the testamentary intention of the deceased person.

In his reasons for judgment, Mr. Justice Armstrong set out the legal tests as follows:

[30] Under s. 58, there is no “minimum level of execution or other formality for a testamentary document to be found fully effective” (Hadley Estate at para. 35). If a court grants an order under s. 58(3) a document may be admitted to probate regardless of its form (at para. 35).

[31] The party seeking an order under s. 58(3) must demonstrate, on a balance of probabilities, that: (1) the testamentary document is authentic; and (2) the testamentary document contains the full, final and fixed intention of the will-maker.

[32] Hadley Estate states:

[36] As discussed in Estate of Young, s. 58 is very similar to Manitoba’s curative provision and thus the leading appellate authority on its meaning is George v. Daily. George and several other Manitoba authorities are reviewed in Estate of Young, which review need not be repeated. Their import is summarized at paras. 34–37:

[34] As is apparent from the foregoing, a determination of whether to exercise the court’s curative power with respect to a non-compliant document is inevitably and intensely fact-sensitive. Two principal issues for consideration emerge from the post-1995 Manitoba authorities. The first [is] an obvious threshold issue: is the document authentic? The second, and core, issue is whether the non-compliant document represents the deceased’s testamentary intentions, as that concept was explained in George.

[35] In George the court confirmed that testamentary intention means much more than the expression of how a person would like his or her property to be disposed of after death. The key question is whether the document records a deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death. A deliberate or fixed and final intention is not the equivalent of an irrevocable intention, given that a will, by its nature, is revocable until the death of its maker. Rather, the intention must be fixed and final at the material time, which will vary depending on the circumstances.

[36] The burden of proof that a non-compliant document embodies the deceased’s testamentary intentions is a balance of probabilities. A wide range of factors may be relevant to establishing their existence in a particular case. Although context specific, these factors may include the presence of the deceased’s signature, the deceased’s handwriting, witness signatures, revocation of previous wills, funeral arrangements, specific bequests and the title of the document: Sawatzky at para. 21; Kuszak at para. 7; Martineau at para. 21.
[Emphasis in Mr. Justice Armstrong’s reasons.]

[37] While imperfect or even non-compliance with formal testamentary requirements may be overcome by application of a sufficiently broad curative provision, the further a document departs from the formal requirements the harder it may be for the court to find it embodies the deceased’s testamentary intention: George at para. 81.

Mr. Justice Armstrong confirmed that the computer document is a “record” to which section 58 may be applied. Although I think this is clear from a reading of section 58, I am not aware of any previous reported British Columbia cases considering this issue.

Mr. Justice Armstrong was satisfied that Mr. Hubschi created the record. He then considered the wording indicating that Mr. Hubschi intended to make a formal will in the future. He found that the fact that Mr. Hubschi intended to make a formal will int eh future did not prevent the court from giving effect to the computer record, provided that it represented Mr. Hubschi’s fixed and final intention. In looking at the record in the context of Mr. Hubschi’s relationships with the Stack family, he found that it did.
Mr. Justice Armstrong wrote:

[56] The next question is whether these words represent a deliberate or fixed and final expression of Mr. Hubschi’s intention to dispose of his property to his family members at death. The question is whether the noncompliant computer record embodied Mr. Hubschi’s testamentary intentions on the day he died.

[57] The question to be answered in this case is whether the deceased’s use of the phrase “get a will made out at some point” is sufficient, in the light of all of the circumstances including the relationship with his siblings, the proximity of his death to his last viewing of the document, the proposed disposition of his entire estate to his siblings, and his receipt of an equal share in Mary Stack’s estate.

[58] Although the words in his computer record contemplate preparation of a formal will at some time in the future, I conclude that Mr. Hubschi’s testamentary intentions were reflected at the time he created the computer entry and when he reviewed the document on the day he died based on:

a. the details concerning his history and ongoing close relationship with the Stack children,

b. the Stack children’s ongoing care for him,

c. the obvious deterioration in his health at the time he opened this document on his computer on the day he died, and

d. the division of Mrs. Stack’s estate between Mr. Hubschi and his brothers and sisters.

[59] Thus, although the deceased’s words are noncompliant with the provisions in WESA, I conclude that it was the deceased’s testamentary intention that his estate should be divided by “A 5 – way split for remaining brother and sisters.”

[60] I order that the document prepared by Mr. Hubschi will be fully effective as though it had been made as the testamentary intention of Mr. Hubschi and that probate of the will be granted to Gregory Kenneth Stack on the basis each of the Stack children will receive a one-fifth interest in his estate.