Historically, British Columbia required strict compliance with the attestation and other formalities when creating or changing a will. While this approach promoted certainty, it could sometimes defeat the testamentary intentions of the will-maker.
This changed with the enactment of the Wills, Estates and Succession Act (WESA). Section 58 of WESA introduced a curative power, allowing the courts to declare a record (electronic or otherwise) or document fully effective as a will, alteration or revocation of a will, despite non-compliance with formal statutory requirements. To exercise this power, however, the record must represent the testamentary intentions of the deceased.
In Hadley Estate (Re), Justice Dickson described section 58 as one of the law’s most “far-reaching provisions.” Yet the scope of this judicial discretion raises an important question: Can a casual text message or email expressing an intent to disinherit a beneficiary alter a will?
The British Columbia Court of Appeal in Paige v Noel, 2025 BCCA 358 (“Paige”) provides a definitive answer.
Barbara Ann Kissel (deceased) had a will from 2014 that divided her estate between her goddaughter, Jennifer Paige (applicant) and her adopted daughter, Adrian Kissel. By late 2022, family tensions led the deceased to reconsider her estate plan. Over several months, she sent a series of digital communications (messages) to her executor.
- September 2022: A text message stating she planned to “redo” her will and explicitly stating, “Jennifer is out.”
- October 2022: An email clarifying that the 2014 will would stand until she gets a new one, to avoid dying intestate.
- November 2022: She scheduled an appointment with a notary, which was later cancelled for health reasons.
- January 2023: An email to a neighbor (a lawyer) stating that she wished to make a “very minor change” to her will.
The deceased passed away on January 7, 2023, before meeting with a lawyer or signing a new will.
The legal question that arose was whether the above messages constituted a valid alteration of her will under Section 58 of WESA.
The Court’s Reasoning:
While a lower court initially found that the messages were sufficient in removing the applicant as a beneficiary under section 58, the B.C. Court of Appeal overturned the decision, highlighting the following:
1. The formality of the “record”:
Section 58 of the WESA defines a “record” broadly. It includes electronic data that is capable of being read and reproduced in a visible form, meaning that text messages and emails may qualify. However, an informal record, whether electronic or otherwise, doesn’t by itself demonstrate an intention for such record to have a binding legal effect. As the Court of Appeal observed, “[t]he further a document departs from formal requirements, the harder it will be for a court to find it represents the deceased’s testamentary intention.”
What mattered in this case was whether the content of the communication demonstrated a fixed and final intention to effect a testamentary disposition.
2. Ascertaining “fixed and final” intention
The court defined a fixed and final intention as “an intention that the document represents the testamentary intention of the deceased at the material time.” In other words, the communication must have been intended to operate as the change itself, rather than merely expressing a plan to make that change later.
In Paige, the messages referenced the intention of the deceased to make a new will rather than serving as testamentary dispositions themselves. The court inferred from this that the deceased was aware of the formalities of making and revoking a will and therefore, expressed an intention that wasn’t fixed and final when the messages were written. The surrounding evidence supported this interpretation. Although the deceased cancelled her notary appointment in November 2022 for health reasons, there was no evidence to support that she attempted to create a new will in the following months.
The court concluded that the messages could not themselves support a finding that the deceased intended for them to effect the alteration, as they indicated that the change would be made by preparing a new will.
Strategic Takeaways for Estate Planning
Paige serves as a practical guide for understanding the limits of section 58. Although the provision allows courts to recognize emails and text messages as “records” under WESA, that alone is not sufficient to alter a will. The court must be satisfied that the document or record was intended to actually function as a will or a change to a will.
For lawyers, the case reinforces the importance of analyzing both the contents of the document and the surrounding circumstances when relying on informal records under section 58 of the WESA. If the evidence suggests that the deceased merely expressed their intention to create a new will, courts are unlikely to declare the communication or document, a valid will or change to a will.
For clients, the lesson is straightforward. Text messages or emails discussing changes to a will may reflect your wishes, but they will not necessarily change the legal outcome. The most reliable way to ensure that those intentions are respected is to create a new formal will with the assistance of a lawyer.
Conclusion
The decision in Paige confirms that while modern estate law recognizes the reality of digital communication, casual messages will rarely replace a properly executed will.
If you are considering creating a will or making changes to an existing one, taking the time to work with an experienced estate lawyer can ensure that your wishes are protected and that your loved ones are taken care of for generations to come.
Contributers: Niharika Julka, BA, LLB, LLM, Law Clerk at Oak Tree Estate Law Corporation