Finsant Estate (Re)

Finsant Estate (Re)

The application was dismissed because the applicant sought to prove the likely existence of a validly executed lost will rather than to cure a document deficient in formalities; the court must first determine whether a valid will existed before any s.58 curative relief can be granted; absent such a finding the s.58...

Source-derived case information.

Citation
2023 BCSC 842
Parties
Applicant (curative Order Under WESA S.58): Megan Beggs; Respondent; Applicant for Grant of Administration Without Will Annexed: Rhonda Schicchi; Deceased: Rosemary Finsant
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
17 May 2023
Procedural Posture
Probate Application for Curative Order Under WESA S.58 and Grant of Administration Without Will Annexed / Chambers Application; Adjourned From Master; Dismissed With Leave to Reapply
Outcome
Application dismissed with leave to reapply
Legal Topics
Curative Order, WESA S.58, Execution Formalities S.37, Lost or Missing Will, Presumption of Destruction, Intestacy
Source Language
english
Wills and Estates Probate Succession Curative Order WESA S.58 Execution Formalities S.37 Lost or Missing Will Presumption of Destruction +1 more

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Parties

Megan Beggs

Applicant (curative Order Under WESA S.58)

Rhonda Schicchi

Respondent; Applicant for Grant of Administration Without Will Annexed

Rosemary Finsant

Deceased

Procedural Posture

Probate Application for Curative Order Under WESA S.58 and Grant of Administration Without Will Annexed / Chambers Application; Adjourned From Master; Dismissed With Leave to Reapply

Legal Issues

  1. 1 Whether s.58 WESA can be used to cure or amend a missing allegedly valid will
  2. 2 Whether the threshold question of existence and valid execution of the will must be resolved before s.58 relief is considered
  3. 3 Whether evidence rebuts the presumption of destruction when a will traced to testator's possession is not found at death

Ratio Decidendi

The application was dismissed because the applicant sought to prove the likely existence of a validly executed lost will rather than to cure a document deficient in formalities; the court must first determine whether a valid will existed before any s.58 curative relief can be granted; absent such a finding the s.58 application cannot be entertained at this juncture.

Court Disposition

Application dismissed with leave to reapply

Orders

  • Application dismissed with leave to reapply
  • No costs sought by respondent; if parties agree on costs the order may be inserted; otherwise a 30‑minute telephone or video hearing may be arranged to determine costs