CAN YOU “WIPE OUT” A BENEFICIARY BY USING “WHITE-OUT” IN YOUR WILL?
Updated: Oct 31, 2020
In my experience in handling estate litigation claims, I’ve come across my share of estate story conundrums. Here’s a unique one: Can you change your Will after it’s signed by “whiting out” or crossing out the name of a beneficiary? The short answer is maybe. However, under the right circumstances, the answer is - yes.
The BC Supreme Court looked at this issue in Re Levesque Estate, 2019 BCSC 927. In that case, a Deceased made a Will on May 21, 2009 naming her six children and her eldest grandchild as equal beneficiaries. The evidence showed that the Deceased wanted to provide for the eldest grandchild because her parents were not present in that grandchild’s life while all her other grandchildren were supported by their parents. On May 21, 2009, the Deceased had her daughter-in-law prepare the May 21, 2009 Will in accordance with those wishes.
The Deceased kept her Will in a sealed envelope in a dresser drawer in the bedroom of her home. When her health began to decline, the Deceased moved in with one of her children and asked that her dresser, along with its contents which included the Will, be brought to her at her new residence - which it was.
The Deceased died almost nine years later. When a sealed envelope containing the Deceased’s Will was opened, the name of the eldest grandchild had been covered up with correction fluid. The Court heard evidence that in January 2018, the Deceased was upset that her eldest grandchild had eloped without telling her. The Court found that was a plausible reason for the Deceased to have altered her Will, and that such alteration was most probably made by the Deceased.
Under the Wills, Estates and Succession Act, an alteration made in a will must be signed by the will maker whose signature must be witnessed by two witnesses, in both each other’s presence and in the presence of the will maker unless:
the alteration is not substantive,
the alteration has made a word or provision illegible, or
the alteration is made effective by court order under section 58 of the WESA.
Section 58 of the WESA provides that a Court may make an order giving effect to an alteration if the Court determines that a marking on a Will represents the intention of a deceased to alter that Will.
In Levesque, the Court found that the alteration was a deliberate or fixed and final expression of the Deceased’s intention to remove the grandchild as a beneficiary from her Will, and therefore gave effect to the alteration pursuant to section 58 of the WESA.
If you have any questions about alterations to a Will or Estate Litigation, call Scott Taylor at 604-534-6361.