It seems straightforward. However, in British Columbia, it is not quite that simple.

In British Columbia, the law surrounding beneficiary designations is more complicated than
most people, and even some advisors, realize. A long-standing legal doctrine called the
presumption of resulting trust can sometimes override a named beneficiary, meaning the funds
may end up back in the estate instead of going to the intended recipient.

What Is the Presumption of Resulting Trust?

The presumption of resulting trust arises where someone transfers property to another person,
other than a spouse, in exchange for nothing and without clearly demonstrating the intention to
gift the property to the recipient. If the person’s intention is unclear, the law presumes that the
recipient is merely holding the property in trust for the original owner.

The doctrine appears most frequently in estate disputes involving joint bank accounts or jointly
held real estate between parents and children. If the child cannot prove that the parent intended
them to keep the asset after the parent’s death, then the property will be treated as being held in
trust for the estate.

How the Presumption Applies to Beneficiary Designations

Across Canada, courts have disagreed on whether the presumption of resulting trust applies to
registered accounts with designated beneficiaries. In Manitoba, the presumption applies to
benefit plans with designated beneficiaries, 1 whereas in Saskatchewan, it does not. 2 In British
Columbia, the courts have consistently held that the presumption does apply in these
circumstances.

FHSA, the law presumes that the beneficiary holds the money in trust for your estate, unless they as a result, in British Columbia, if you designate a beneficiary on a TFSA, RRSP, RRIF, or can prove that you intended the funds as a gift. If there is no evidence of intention at the time of the designation, the money will likely be held in trust for the estate.

The Unresolved Question: Section 95 of WESA

British Columbia courts have yet to resolve a major issue: section 95 of the Wills, Estates and
Succession Act, which states that a benefit payable to a designated beneficiary under a benefit
plan does not form part of the account holder’s estate. While this may appear definitive, the
courts have not squarely addressed how this section affects the presumption of resulting trust.
Several cases have noted the potential impact of the section but have declined to decide the issue
because they were able to decide the case on other grounds.

Ramifications and Practical Implications

Since a designated beneficiary may still need to prove that the account was a gift, account
holders should ensure that their intentions are clearly documented at the time the beneficiary is
designated.

Courts may look for written notes, conversations witnessed by others, the consistency of the
overall estate plan, and instructions given to financial advisors. Without evidence, the
presumption can be hard to rebut.

If you intend for the account to transfer to the designated beneficiary upon your passing, you
should make your intention clear, which may include:

1. Putting your intention in writing
2.  Communicating your wishes to your executor, estate planner, and family
3.  Ensuring your overall estate plan is consistent

Until the courts clarify how section 95 affects the current analysis, you should not solely rely on
the designation form provided by your financial institution. Taking proactive steps now can help
ensure that your intentions are honoured later.

1 Dreger (Litigation Guardian of) v Dreger, 1994 CanLII 16643 (MBCA).
2 Nelson v Little Estate, 2005 SKCA 120.
3 Neufeld v Neufeld, 2004 BCSC 25; Stade Estate (Re), 2017 BCSC 2354; Williams v Williams Estate, 2018 BCSC
711; Simard v Simard Estate, 2021 BCSC 1836; Chappell v Chappell, 2024 BCSC 268.

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When a loved one passes away, we rely on their will to provide certainty and finality regarding the distribution of property.

Historically, legal systems required strict compliance with formalities for a will to be considered valid, thereby ensuring the necessary certainty.

However, modern estate law in British Columbia includes a significant curative power under section 58 of the Wills, Estates, and Succession Act (WESA). This power allows the court to order that a “record, document, or writing” be fully effective as a will, or an alteration or revocation of a will, if it determines that the record represents the deceased’s testamentary intentions. This “record” can include text messages and emails.

This raises a crucial question about trust and certainty in estate planning: can an informal message expressing a desire to change a will change the will? The British Columbia Court of Appeal considered this question recently in Paige v. Noel, 2025 BCCA 358

The Core Dispute: Messages vs. Formal Will

The appeal involved the estate of Barbara Ann Kissel, who died on January 7, 2023. Her 2014 will named her goddaughter, Jennifer Elise Paige (the Appellant), and Adrian Joseph Kissel (a Respondent), as equal residual beneficiaries.

After a conflict developed between the deceased and Jennifer Paige, the deceased sent a series of electronic messages (the “Messages”) to her executor, Michelle Dianne Noel, in October 2022. These Messages outlined her intent to “redo” her will and said, “Jennifer is out”.

Crucially, the subsequent email sent on October 15, 2022, detailed her meeting with a notary and her decision not to destroy her current will immediately, explicitly stating: “the current will that you have will stand until I get a new one.” She passed away months later without executing a new will.

The Chambers Judge’s Finding

The chambers judge, applying the curative power found in section 58 of WESA, concluded that the Messages represented the deceased’s “fixed and final intention” to remove Jennifer Paige as a beneficiary. The judge placed significant weight on the deceased’s consistent, stated intention to remove Jennifer, even though she was taking steps to accomplish this via a notary. The judge reasoned that the statement that the current will would stand was simply to prevent the estate from being tied up in probate should the deceased die intestate before the new will was completed. Consequently, the judge ordered the Messages to be fully effective to alter the 2014 will.

The BCCA Rejects Informal Revocation

The BCCA allowed the appeal, finding that the chambers judge erred in law regarding the interpretation and application of s. 58 of WESA.

The Court focused on the necessity for a “deliberate or fixed and final expression of intention as to the disposal of property on death”. Madam Justice Fisher, writing for the Court, explained that under s. 58, this standard means that the deceased must have intended the record itself—in this case, the text and email communications—to be legally operative as a revocation or alteration.

The court cautioned that while electronic documents such as texts and emails can technically be “records” under s. 58(1), informal communications that are simply a recording of a conversation are unlikely to meet the required threshold unless the content demonstrates a fixed and final intention to effect a testamentary disposition.

The court found the chambers judge made a palpable and overriding error in concluding the Messages represented a fixed and final alteration, particularly because the deceased herself clearly expressed a conditional intention:

1. The deceased stated she had an appointment to “redo my will”.

2. She expressly declared that the “current will… will stand until I get a new one”.

The BCCA emphasized that the deceased intended to effect the alteration by making a new will, and until that new will was made, her existing will was to remain operative. The fact that the Messages contemplated the preparation of a formal new will meant they were not intended to be the alteration themselves.

In contrast to a case where an informal document was admitted because the deceased had never made a will and the extrinsic evidence supported the document’s finality, the deceased here had an operative will and was aware of the formalities required to change it.

The Takeaway

The decision reaffirms the high bar for using section 58 of WESA to validate informal documents, particularly when those documents express an intention to later create a formal will. While WESA provides a curative power to overcome technical non-compliance, that power cannot transform a record of a conversation or future intent into a legally binding testamentary document unless the deceased intended the communication itself to operate as the alteration or revocation.

The case serves as a crucial reminder: A record must not only express a desire to dispose of property differently, but it must also be intended by the deceased to operate as the final testamentary act at that material time, like an anchor securing a boat’s fixed position, rather than merely a navigational note detailing where the boat intends to go next.

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Issues concerning undue influence or lack of capacity can have the effect of invalidating a Will. A Will may also be invalid if it does not comply with s.37 of the British Columbia Wills Estates and Succession Act (“WESA”) which states that the Will must be:

(a) In writing,

(b) Signed at its end by the Will-maker or the signature at the end must be acknowledged by the Will-maker as his or hers, in the presence of 2 or more witnesses present at the same time, and

(c) Signed by 2 or more of the witnesses in the presence of the Will-maker.

Further, a Will that contains unclear provisions may be found to be invalid or the particular gifts that are the subject of the unclear provisions may fail unless they can be cured under certain provisions in WESA. Other issues with a Will, such as formality requirements, may be able to be fixed through provisions of WESA.

Under section 58 of WESA, if a Will does not satisfy the formal requirement, the court has discretion to cure the formal deficiencies. This generally involves ascertaining the Will-maker’s testamentary intentions.

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Written communication, such as formal letters or emails, not only ensures that details are documented but also provides beneficiaries with a reference point. An executor is obligated to keep beneficiaries “reasonably” informed throughout the estate administration process and to answer inquiries made by beneficiaries in a timely manner. What is reasonable depends on the circumstances and estate administration can take months or years to complete.

If the executor is not communicating with beneficiaries and delay is becoming an issue, a court application can be brought to compel the executor to complete the administration of the estate and distribute the estate’s assets.

Beneficiaries should be provided with enough information to ensure the estate administration process is progressing and that the estate is being administered in accordance with the terms of the Will. At the start of the process, the executor must provide notice to each person with an interest in the estate. This notice should indicate what the beneficiary is entitled to pursuant to the terms of the Will.

Delivery may be by personal delivery, ordinary mail, email, or other electronic means to the address provided by the person for that purpose. There is no requirement to prove receipt of a notice that has been mailed.

However, before mailing, the executor must make reasonable efforts to verify that the address is current, even when the Will-maker has long been out of touch, and if it is not, make an effort to trace the current address.

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1. A submission for an estate grant;

2. An affidavit of the applicant for grant of probate from the applicant;

3. If there are two or more applicants, an affidavit in support of an application for an estate grant from each applicant;

4. Two copies of a certificate of Wills notice search;

5. Any affidavit or material required to deal with issues relating to the Will, including proof of due execution, the effect of interlineations or alterations, or electronic Wills;

6. One or more affidavits of delivery that, collectively, confirm that notice was delivered to all persons to whom notice must be given;

7. An affidavit of assets and liabilities from the applicant;

8. Two exact copies of the Will or a copy of the Will being submitted;

9. The written comments of the Public Guardian and Trustee if notice of the application must be given to the Public Guardian and Trustee on behalf of a minor or a mentally incompetent person;

10. A draft of the estate grant or authorization to obtain estate information (although drafts may not be required at some registries such as Vancouver which will prepare these documents internally);

11. A lawyer’s trust cheque, certified cheque, or bank draft (the court registry will not accept personal cheques) for the initial probate filing fee in the amount of $200, to be submitted with the application (note that no filing fee is payable if the estate does not exceed $25,000 in value);

12. A lawyer’s trust cheque, certified cheque, or bank draft for the balance of the probate fee, is to be submitted when the probate registry has advised that the application has been approved and confirmed the amount of the fee.

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In BC, an issue that can arise is Wills variation claims by the spouse or children of the deceased. The definition of “child” in this context includes adult children.

Under section 60 of the British Columbia Wills Estates and Succession Act, a spouse or child may commence a proceeding to vary a Will that does not adequately provide for the spouse or child’s proper maintenance and support.

In this situation, the court may order the provision be made that it thinks is “adequate, just and equitable” in the circumstances. If a Wills variation proceeding is commenced, a distribution of the estate may only occur with the consent of the court.

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A grant of probate will become necessary if the validity of the Will is called into question. If a grant of probate is necessary, the next question is whether the executor will seek a grant of probate in common form or a grant of probate in solemn form. Probate in common form is the procedure by which a Will is approved by the court as the last Will of a testator.

Probate in solemn form pronounces for the validity of the will and also confirms the appointment of the person named as executor in the Will. Agencies and financial institutions that hold assets in an estate generally require that a Will be probated before allowing an executor to access the assets.

Until a grant of probate is issued, the executor does not have any legal right to deal with the assets of the deceased. In British Columbia, before applying for the probate grant, the executor needs to send a notice of their intention to apply for the grant to certain people, including every beneficiary named in the Will.

In order to obtain a grant of probate of a Will, the Will must be proved to the court on the basis of affidavit evidence filed with the court by the executor.

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According to section 142(2) of the British Columbia Wills Estates and Succession Act (“WESA”) the executor must account to the creditors as well as beneficiaries. The beneficiaries will receive the residue after these debts and taxes have been paid. According to section 159(2) of the Income Tax Act, an executor must also obtain a clearance certificate from the Minister before making a distribution.

If the assets are not sufficient to pay all the debts and the gifts under the Will, the assets must be liquidated to pay the debts in an order specified by WESA. As a note, benefit plans that have designated beneficiaries pay benefits directly to those beneficiaries, and creditors of the estate have no access to payments made from benefit plans: WESA, s. 95.

An executor is not liable for the debts of the estate, but if the executor distributes assets before the debts are paid, then he or she could be held accountable for the amount they distributed. Also, according to WESA, s. 53(3), if the Will leaves a gift to a creditor, that gift is not necessarily a payment by the Will-maker on the debt, unless the Will clearly says that it is. In other words, a creditor might take a gift and still pursue a debt.

The post How do I handle debts and liabilities of the deceased person, including taxes? appeared first on Nanaimo Law | Heath Law.

The distribution of an estate may depend on the type of gift set out in the Will. Gifts may be conditional, which means that they depend upon a particular event taking place or a particular situation existing. The Will-maker may also make specific gifts, giving particular assets to named individuals or broadly dividing the estate assets among named groups.

As a note, certain items are not passed through a Will, such as life insurance, property held in joint tenancy, or funds in an RRSP which a beneficiary was named. When making final distributions to a beneficiary, he executor should obtain approval of their executor fees and a Release from beneficiaries on payment of the bequest.

The post What steps should I take to ensure the proper distribution of assets according to the Will or provincial law? appeared first on Nanaimo Law | Heath Law.

Financial institutions can also provide clues, as beneficiaries are often linked to accounts and investments. Furthermore, the beneficiaries’ family and friends may possess valuable insights into the whereabouts of the beneficiary. Other practical steps include checking their last known address and talking to their neighbours, checking with their last known employer, and asking at places where they are known to have contacts (for example, clubs and social organizations).

If, after taking these steps, you still can’t find the beneficiary, you can hire someone to locate a person’s whereabouts. This is known as a trace, and there are several companies in BC that offer tracing services. Whichever company you choose to work with, they will want as much information about the beneficiary as you can provide. However, if you are still unsuccessful, you may need to apply to court for an order either dispensing with notice or notifying the missing beneficiary in a different way such

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