Peterson (Re)

2026 BCSC 489 Peterson (Re) IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Peterson (Re), 2026 BCSC 489 Date: 20260320 Docket: S253093 Registry: Vancouver In the Matter of the Estate of Carole Anne Peterson, Deceased Before: The Honourable Justice Burke Reasons for Judgment Counsel for the Petitioner: R. Lee Counsel for the Respondent: S.J.L. Stewart-Lee M. Do, Articled Student Place and Date of Hearing: Vancouver, B.C. February 18 and 19, 2026 Place and Date of Judgment: Vancouver, B.C. March 20, 2026 Introduction [1] The petitioners, the Heart and Stroke Foundation of Canada (the "Heart and Stroke Foundation") and the Canadian Cancer Society, seek a determination pursuant to s. 58 of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 [WESA], that an undated, unsigned document represents the fixed and final testamentary intentions of Carole Anne Peterson (the "Deceased"), and is fully effective as the will of the Deceased. [2] In addition, they seek orders appointing the Public Guardian and Trustee of British Columbia (the "PGT") as administrator with will annexed of all the estate, title to all assets both real and personal of the estate vested in the name of the administrator, and costs to the petitioners from the estate. [3] The Alzheimer Society of British Columbia and Yukon (the "Alzheimer Society") has also filed an application under the same provisions seeking an order that a digital document is the fixed and final testamentary intention of the Deceased and is fully effective as her will. In addition, they seek the resulting orders from these determinations. Background [4] The Deceased passed away on August 13, 2024, in Langley, BC, leaving behind an estate valued at roughly $700,000. [5] The Deceased had no spouse and no children. She had a sister, Marlene Fay Mills, from whom she had been estranged for between 25 and 30 years. She was predeceased by her parents. The only family that she appeared to have some contact with was her paternal cousin, Daryl Sundstrom, and his wife Joan Rodgers, who lived nearby. [6] The Deceased did not have a valid will. After her death, however, Mr. Sundstrom and Ms. Rodgers attended her residence and found a number of undated, unsigned documents which the respective petitioners maintain appear to be unfinished wills naming them as beneficiaries. Two of the documents are partially filled out. Neither document is signed and dated, nor witnessed. Neither document specifies an executor or trustee. [7] The first document is a printout of a typed document entitled "Last Will and Testament" (the "Physical Will") and includes the following provisions: Gifts of Specified Items or Articles (b)(i) to deliver The Family piano to Devin Kvist or Alicia Kvist that wish to have [this gift is circled in handwriting with a question mark, and a handwritten note that says, "Donate to a"] (ii) to pay any portion of the packing, freight and insurance costs my Trustee decides is appropriate for delivering any items of the Article as required by this Will. Residue of Estate I direct my Trustee to divide the residue of my estate as follows (1) 50% to the Canadian Cancer society (2) 50% to the Canadian Heart and Stroke Foundation [8] After setting out some standard form powers of a Trustee, the Physical Will further states: I am aware of the provision of the Wills Estate Succession Division 6 Section 60 and I have given careful consideration to the provisions of the said Act and in making this my Last Will and Testament. I have made no provision for my sister Marlene Mills inside this document. Funeral Wishes It is my wish and I Direct that my remains be cremated and interred along side my Father and Mother at the Langley Lawn Cemetery in the Township of Langley. [9] Section 60 of the WESA deals with variation claims from a will-maker's spouse or children and thus has no application here. The above provisions are the only complete provisions of the Physical Will; it is otherwise replete with partial sentences and isolated words from which little meaning can be derived. Neither the Deceased nor any witnesses signed the Physical Will. The Physical Will does not appoint an executor. [10] Mr. Sundstrom provided in an affidavit that the Deceased's health was relatively good with the exception of two brain bleeds. The first she suffered in 2019 as a result of a small car accident. The Deceased had a second brain bleed in October 2022 which required hospitalization. At that time, she initially lost her ability to speak and write properly. While she understood what people were telling her, she had a hard time communicating and writing. She mostly regained these abilities after some time and re-learning. [11] Mr. Sundstrom further attested after the Deceased recovered from her 2022 brain bleed, she appeared to be mentally competent. While she had some difficulties with writing, she was able to communicate effectively. [12] Mr. Sundstrom and Ms. Rodgers provided the Physical Will to the PGT after they found it at the Deceased's home. In addition, they located what appeared to be various notes and documents relating to the Physical Will among the Deceased's effects. These were also provided to the PGT. [13] The documents included handwritten notes which were entitled "Last Will and Testament" in one of the Deceased's booklets on the dining room table, but not together with the Physical Will. Those notes stated that the Deceased was not married or in a common-law relationship and had no living children. The notes did not appoint an executor; nor distribute the assets of the Deceased's estate. [14] Included among the notes were undated handwritten draft emails to a law firm concerning the preparation of a will. The PGT contacted that law firm, who confirmed they did not have a will or any record of drafting a will for the Deceased. [15] Mr. Sundstrom and Ms. Rodgers also located another document in a box on the dining room table, which appeared to be a printout of an online form on which the Deceased made some preparatory notes. The document was titled "Simply Wills" and was on a form generated by GreenWay Legal Centre. This legal centre also confirmed to the PGT that it did not have any will or any record of drafting a will for the Deceased. [16] On August 20, 2024, a wills search was completed for the Deceased and no results were found. [17] On October 10, 2024, however, the PGT's investigators attended the Deceased's home to conduct a search for testamentary documents and removed all papers and electronic devices from the home. Those investigators found a folder on a Samsung tablet found at the Deceased's home with draft testamentary documents including a partially-filled online will (the "Digital Will") found on the tablet as a text file. The Digital Will is marked as a draft and, like the Physical Will, is undated and unsigned by the Deceased or any witnesses and does not appoint an executor. It is titled "Last Will and Testament of Carole Anne Peterson" and includes, among other things: a) a revocation of all prior wills and codicils; b) a description of the Deceased's family circumstances, that the Deceased was not married or in a common-law relationship and had no children; and c) added the following directive: I direct my Executor to divide the residue of my estate into one hundred (100) equal shares which shall be distributed as follows : 1. Bc cancer agency of ______, British Columbia with the charitable registration number:_____, will receive 0 shares of the residue of my estate; 2. Heart and stroke foundation of ______, British Columbia with the charitable registration number:______, will receive 0 shares of the residue of my estate; and 3. Alzimers [sic] of ______, British Columbia, with the charitable registration number:______, will receive 0 shares of the residue of my estate. [18] At the bottom of the Digital Will is text reading "©2002-2022 LawDepot.ca®". [19] Other testamentary documents found on the tablet included various templates that had not been filled out, as well as online legal resources on drafting wills and preparing one's estate. [20] The PGT indicated that the Digital Will was found on the Deceased's Samsung tablet in the downloads folder as a .html document with the the file name "Last Will & Testament Form_Free Last Will Template (Canada)_LawDepot". All of the items in the downloads folder on the Samsung tablet have a "last date modified" of the date the PGT's digital device recovery specialist transferred the documents to a USB. That date therefore was November 14, 2024. [21] A copy of the Digital Will was also found on the Deceased's HP laptop computer, also in the downloads folder as a .html document with the same file name as described above. On the HP laptop computer, however, the Digital Will had the "last date modified" as September 7, 2022, at 3:58 p.m. [22] As noted, the estate assets total approximately $700,000. The estate liabilities are approximately $6,000. [23] The PGT determined that the Deceased's intestate successor is the Deceased's estranged sister, Marlene Fay Mills. Ms. Mills provided an affidavit indicating that she wished to honour the wishes of her sister and consents to this application to rectify the Will. She appended to her affidavit recent communications in which she confirmed and consented to the residual funds of the estate being distributed to the beneficiaries the Deceased intended, as long as they meet the Deceased's final wishes. Ms. Mills noted she had no preference to either version of the will. [24] Mr. Sundstrom says he accepts the Physical Will as being reflective of the Deceased's wishes and did not wish to contest the validity of the Physical Will. [25] The PGT indicated it would not take steps to cure the testamentary documents in this case and takes no position as to whether they can be cured. The PGT has not yet obtained a grant of administration for the Deceased's estate but has confirmed that it will consent to, and is ready, willing and able to act as the administrator of the estate. Issues [26] Neither the Physical nor Digital Will comply with the formal requirements set out in s. 37 of the WESA to be considered a valid will in this case. Nevertheless, this Court has the discretion under s. 58 to recognize these documents as the true will of the Deceased. [27] With the exception of the specific gift of the piano, the Heart and Stroke Foundation and Canadian Cancer Society stand to be the only beneficiaries under the Physical Will and seek to have that document recognized accordingly. The Alzheimer Society is a named beneficiary under only the Digital Will and thus seeks to have that document recognized instead. Therefore, the issue for this Court to decide is which of these documents, if either of them, can be recognized as the Deceased's will under s. 58? Legal principles [28] Pursuant to s. 58(3) of the WESA, a court may order that a document, including data stored electronically, be fully effective as a will. Section 58(3) reads: 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. [29] Pursuant to s. 58(2) of the WESA, the court can make such an order if the document purporting to be a will represents the testamentary intention of the deceased person. The jurisprudence establishes that the role of the court under a s. 58 application is to determine whether the document represents the deliberate or fixed and final expression of the deceased's testamentary intentions on a balance of probabilities: Hadley Estate (Re), 2017 BCCA 311 at para. 36. [30] As noted in Smith Estate (Re), 2016 BCSC 350 at para. 18, s. 58 was first considered in Estate of Young, 2015 BCSC 182. The Court in that case "observed the provision is curative, providing the court with a discretion in prescribed circumstances to relieve against the consequences of non-compliance with testamentary formalities. It cannot however be used to uphold a will that is invalid for substantial reasons such as testamentary incapacity or undue influence." [31] The latter concerns are not issues in this case. Rather, the question is whether the court can relieve against consequences of noncompliance with testamentary formalities in this case. [32] Estate of Young noted the key question to be answered 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: at para. 35. [33] More recently, the BC Court of Appeal has added that the document must have been intended to be a will as per the recent case of Paige v. Noel, 2025 BCCA 358 which said at para. 23, " [a] fixed and final intention must be grounded in the document itself, in that the document is intended to effect the testamentary intention." Discussion and analysis [34] The petitioners, the Heart and Stroke Foundation and the Canadian Cancer Society, argue that the facts support the finding that the Physical Will meets the requirements of s. 58. In particular, they point to the title at the top of the Physical Will, being "Last Will and Testament", and that it bequeaths the entirety of the Deceased's estate and makes specific bequests such as the piano. In addition, the Physical Will specifically addresses the issue with respect to the Deceased's estranged sister and notes that she does not wish any of her estate to pass to her sister. Finally, the Physical Will makes funeral arrangements and essentially appears to be the last will and testament of the Deceased, but is just missing signatures from the Deceased and witnesses. [35] While the Physical Will does not name an executor, Ms. Mills is the Deceased's intestate successor, and consents to the rectification of the Physical Will and the appointment of the PGT as administrator of the estate. [36] The Physical Will itself was found on the dining room table in the Deceased's residence, along with other important documents of the testator. This included booklets that the Deceased had made notes in, mail, bills, credit card and pension statements and the Deceased's father's will on the dining room table or in the boxes nearby. In addition, online legal resources setting out how to read a will were printed out with this and other documents. [37] The petitioners further say that the Deceased did not follow up with lawyers, and the existence of the above documents in conjunction with her Physical Will supports that this was her last will and reflects a deliberate or fixed and final expression of her testamentary intentions, regardless of the form of the document itself. [38] Counsel for the Alzheimer Society points out that the main question in an application under s. 58 is whether a document alleged to be a will can be cured. In this case, counsel says that both the Physical and Digital Will can be cured. Accordingly, it is important that the Court determine the timing of those wills. Each contains a revocation of previous wills clause which is applicable to the determination. [39] The Alzheimer Society says the evidence demonstrates that it is more than probable that the Digital Will was the latest in time, reflects the final intentions of the testator and is more likely the last will and testament of the Deceased. [40] Counsel points out the preparatory notes were found near to where the Physical Will was found and contains both the bequest of the piano and the same residue division as provided in the Physical Will between the Canadian Cancer Society and the Heart and Stroke Foundation. [41] In addition, in the preparatory notes the Deceased lists her age as 70 years old. The Deceased's date of birth is August 3, 1951. Therefore, from August 3, 2021 to August 2, 2022, the Deceased was at the age of 70. The Digital Will's "last modified" date was September 7, 2022. By that time, the Deceased would have been 71 years old. [42] The software used to create the Digital Will appears to use a website called LawDepot.ca ("LawDepot") which is listed and copyrighted up to 2022 at the bottom of the Digital Will. The Alzheimer Society says the timing would indicate this is the final document. It was found on two of the Deceased's electronic devices within her home. In the fall of 2022, around the same date as the last modification date of the Digital Will, which was September 7, 2022, the Deceased had expressed an interest in making a will to Mr. Sundstrom and Ms. Rodgers and had asked them for further information. The Digital Will includes two of the same beneficiaries as the Physical Will, increasing the likelihood that they were drafted by the same testator. [43] With respect to the timing of the two wills, counsel maintains that the preparatory notes found near the Physical Will contain both a bequest of the same gift and the same residue division as provided for in the Physical Will, and lists the Deceased's age as 70 years old. The last date the Deceased could have been 70 was August 2, 2022. [44] The Digital Will has a modification date of September 7, 2022. Counsel for the Alzheimer Society says therefore on a balance of probabilities the Digital Will was created in September 2022 after the Physical Will was created. There were no further testamentary documents found with a later date than the last modification date of the Digital Will. Despite having written an email and receiving contact information about a lawyer to prepare a will, the Deceased chose not to do so. She did not take any further steps in creating a new will prior to her death in 2024. [45] Although the Digital Will does not make a specific distribution of the estate's residue, but rather lists each of the charities as receiving zero shares, counsel for the Alzheimer Society says the extrinsic evidence makes clear the distribution is intended to be equal between the three beneficiaries. While the Deceased did not include significant information in the Digital Will, she provided sufficient information for it to be workable, counsel says. She provides particulars of her family circumstances, complete instructions and powers to an executor and trustee, and the names of her intended beneficiaries. The Deceased took the time to fill in the specific beneficiaries but did not input the residue share breakdown. In the absence of the specific breakdown, counsel maintains the Court should interpret the Deceased's desired equal distribution to each of the listed beneficiaries. [46] In reply, counsel for the Heart and Stroke Foundation maintains that the clause in the Digital Will which does not specify the amounts to be distributed to the three charitable organizations is relevant to determining whether the Deceased had a fixed and final intention with respect to her Will. This clause, counsel says, reflects that the Deceased had not made up her mind. It therefore cannot be said that the value of the gifts can be implied as the Deceased's wishes, as she had not expressed those wishes. The preparatory notes reflect that her estate was to be divided evenly between only the Heart and Stroke Foundation and the Canadian Cancer Society, and this was then reflected in her Physical Will. [47] With respect to which document was completed first, the Heart and Stroke Foundation says while the Alzheimer Society maintains the Physical Will was completed in 2021 because the preparatory notes indicate the Deceased was 70 years old at the time, this is not necessarily the logical conclusion once one looks at the pattern of the timing. While the Digital Will has a last modified date on the HP laptop of September 7, 2022, counsel points out that the Deceased suffered a second brain bleed in October 2022. [48] In November 2022, she composed an email seeking the advice of Ms. Rodgers for a lawyer to prepare her will. She did not however send this email. This email is after the Digital Will is created. Further, there are other downloads on the Deceased's electronic devices including the online legal resources related to the completion of the Physical Will. Counsel argues it is therefore more likely that once she had the second brain bleed in October 2022, the Deceased concluded she needed to get her affairs in order. She downloaded the various online legal resources on drafting a will, created the Physical Will and placed it on the dining room table with other important documents. The Heart and Stroke Foundation and Canadian Cancer Society say the Physical Will is therefore the fixed and final intention of the Deceased. [49] I agree with these latter comments. This Court concludes the Physical Will is the deliberate or fixed and final expression of intention, and that the Deceased's testamentary intentions are expressed in this document regardless of the form of the document itself: see Paige at para. 23. [50] In the Court's view, the factors relevant to making the determination of whether a deliberate or fixed and final expression of the Deceased's intention in this case, regarding the disposal of her property include: · The title at the top of the Physical Will, "Last Will and Testament". · The Physical Will bequeaths the entirety of the Deceased's estate providing 50% to the Heart and Stroke Foundation and 50% to the Canadian Cancer Society. In addition, it makes specific bequests such as the piano and funding associated with the movement of the piano. · The Physical Will specifically addresses the issue with respect to her estranged sister and notes that she does not wish any of her estate to pass to her sister. · The Physical Will makes funeral arrangements. · The Physical Will conveys an air of finality. [51] With respect to the validity of the Digital Will and its timing as argued by the Alzheimer Society, as counsel for the Heart and Stroke Foundation has pointed out, the Deceased suffered a second brain bleed in October 2022. This serious event is likely what triggered the Deceased's efforts to get her affairs in order and prepare her estate. [52] While in November 2022, the Deceased composed an email seeking the advice of Ms. Rodgers for a lawyer to prepare her will, she did not send this email. As noted in Paige at para. 22, citing Estate of Young at para. 35: A deliberate or fixed and final intention is not the equivalent of an irrevocable intention, given that a will, by its nature, is irrevocable 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. [Emphasis in original.] [53] The November 2022 email was composed after the Digital Will was created. In the Court's view, this shows that after the creation of the Digital Will, the Deceased was still contemplating hiring a lawyer to draft her a will and prepare her estate. Even if she ultimately did not follow through, this fact thus casts doubt on the assertion that the Digital Will represented her fixed and final intention as of September 2022. [54] In addition, there is no air of finality in the Digital Will as no specific division between the three charitable institutions is set out. As noted in Smith Estate at para. 21, it is not the role of the court on an application pursuant to s. 58 to determine the validity of a gift in a will. This provision in the Digital Will, which reflects uncertainty with respect to the Deceased's final intentions, is relevant to determining the finality of the Deceased's intentions and therefore the validity of the Digital Will itself. [55] The Deceased may have been considering a disposition to the Alzheimer Society, but she had not made that final decision. This is in contrast to her fixed and final intent to distribute equally between the Heart and Stroke Foundation and the Canadian Cancer Society as reflected in the Physical Will. That uncertainty impacts on the conclusion as to whether the Digital Will reflected a fixed and final intent as to her testamentary intentions. [56] It is therefore more likely that once the Deceased had the second brain bleed in October 2022, the Deceased concluded she needed to get her affairs in order. She created and/or finalized the Physical Will and placed it on the dining room table with other important documents. The fact that there were other unrelated documents on the table does not detract from this conclusion. [57] The Physical Will therefore represents the final testamentary intentions of the Deceased. [58] After weighing all the factors, the Court finds on a balance of probabilities that what is described as the first will or document, the Physical Will, represents the deliberate and final expression of the Deceased's testamentary intentions. The Court therefore grant the orders sought by the petitioners, the Heart and Stroke Foundation and Canadian Cancer Society. The application by the Alzheimer Society is dismissed. [59] Title to all assets both real and personal of Carole Anne Peterson's estate vest in the name of the administrator, the Public Guardian and Trustee of British Columbia, as of the date of this order. [60] The petitioners, the Heart and Stroke Foundation and Canadian Cancer Society, shall have their costs from the estate of Carole Anne Peterson. "Burke J."