Did a Text Message Change a Will?
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.