Why B.C. Courts Rejected a Will Drafted After the Testator Died
The line between honoring someone's final wishes and creating a legal fiction appeared sharp in a 2024 British Columbia Supreme Court ruling. The court refused to validate a document typed up by the deceased's daughter after his death, even though she claimed it reflected conversations about how he wanted his estate divided.
The document had to exist during the testator's lifetime
Section 58 of B.C.'s Wills, Estates and Succession Act gives courts unusual latitude. Judges can "cure" a document that fails the formal requirements of a will, no witnesses, no signature, wrong format, if they determine it represents the deceased's fixed and final testamentary intentions. The province has used this power to validate suicide notes, unsent emails, and half-finished drafts. But in Kwasny v. Kwasny, the court drew a hard boundary. The curative power applies only to records created while the testator was alive.
The daughter's draft failed because she wrote it after her father died. She had his words, she believed. She may have remembered exactly what he said. What she did not have was a record he created, saw, or approved. The court held that Section 58 is designed to rescue imperfect records of intention, not to manufacture records based on recollection. A will, even an informal one, must be something the testator left behind, not something an heir assembles afterward.
Why "fixed and final" requires a pre-death record
The statute's language refers to a "record" that expresses testamentary intentions. A record presupposes a document, file, or artifact that existed at a fixed point in time. For a court to decide whether intentions were "fixed and final," it needs something created when the testator could have changed their mind but didn't. A daughter typing her father's stated wishes into a document after he has no chance to review, edit, or discard it removes the autonomy the law protects.
The distinction matters in practice. If the father in the case had scribbled notes on a napkin the day before he died, the court likely would have validated it. Same words, possibly worse handwriting. The difference is that the napkin would have been his act, created during his life. The typed draft, no matter how accurate, was hers.
What this means for estates with informal planning
British Columbia's intestacy rules are rigid. If someone dies without a valid will, the estate distributes according to a formula: the first $300,000 to the spouse if all children are common to both, $150,000 if not, with the remainder split. Litigation to cure a document under Section 58 costs tens of thousands of dollars and may fail. Probate fees on a $500,000 estate run roughly $7,000. The legal fight to argue over an informal record can exceed $30,000 before anyone sees a dollar.
The ruling reinforces that B.C.'s flexibility around informal wills has a clear limit. The province allows electronic wills as of 2021. It accepts draft documents saved to a cloud account. It does not accept post-mortem transcription, even when the surviving family agrees that the transcription is faithful. The testator's autonomy extends only as far as the records they created.
If estate planning conversations happen but nothing gets written down, the estate falls into intestacy. The solution is not complicated. A single page, signed at the end, witnessed by two people present at the same time, costs nothing and survives court scrutiny. Trusting that someone will "just know" what you wanted is a plan that depends on a court battle you cannot control.
