As recently as our last quarterly client newsletter, we addressed the question of what happens when a person in British Columbia dies without a will, and why a thorough estate plan is so important. In August of this year, a Supreme Court of British Columbia case determined that showing true testamentary intention and compliance with Wills, Estate and Succession Act requirements, are equally important steps of a valid and enforceable estate plan.
In Bishop Estate v Sheardown 2021 BCSC 1571, the court found that an unsigned will represented a deceased woman’s “fixed and final testamentary intentions,” after she was unable to have it signed and witnessed due to the outbreak of the COVID-19 pandemic. Crucially, the court determined that the unsigned document, which had been drawn up by the deceased’s lawyer, revoked prior wills and named executors and beneficiaries, had all the requisite hallmarks of an effective will under section 58 of the Wills, Estates and Succession Act. The court concluded:
“The document and the context in which it is made has the hallmarks of fixed and final testamentary intention in that [it] bears the title of a will, it was made by a lawyer retained by [the testator] for that purpose, it revokes her prior wills, it directs how her remains are to be dealt with, it names executors and beneficiaries including an alternate beneficiary. The beneficiaries make sense in the context of [the testator]s relationships.”
Interestingly, and although in principle and on occasion a solicitor’s unsigned draft will can be given effect under section 58, in two earlier British Columbia cases, the courts had declined to do so.
In the Re Bailey Estate, 2016 BCSC 1226 case, Jann Bailey met with her solicitor on May 24, 2013, and gave her instructions for a new will, which included naming her husband as executor, and leaving property in Northern Ireland to him. Notwithstanding further visits with her lawyer, and a further draft will being produced by her lawyer, Ms. Bailey died on October 9, 2015, without signing the will. The court found, that as there simply was no expression by Ms. Bailey whether the December 2014 draft will was a final expression of her testamentary intentions, and accordingly, the December 2014 Will was not given effect.
The following year, in Re Herod Estate, 2017 BCSC 318, the court again heard a case involving an unsigned will. Robert Herod made a will dated November 14, 2014, appointing his solicitor as his executor and trustee. On June 1, 2015, Mr. Herod instructed his solicitor that he wished to make changes to his will by removing some of the beneficiaries. It was difficult for Mr. Herod to go to the solicitor’s office, and he wanted to sign it at home. The solicitor mailed the draft will to him on July 22, 2015 with a covering letter setting out instructions on how to sign the will. He confirmed by telephone on July 29, 2015, that he had received the letter and the will, but did not say whether he had read the will. The solicitor followed up by leaving a voice message on September 30, 2015. Mr. Herod died on October 13, 2015, without signing the will.
The court did not give effect to the 2015 draft will. One of the key considerations was that there was no explanation for why Mr. Herod took no steps to arrange to have the will witnessed. He did not even sign or initial the will himself. In those circumstances, the court could not “conclude that the 2015 will sets out Mr. Herod’s settled intentions with respect to the disposition of his estate. Something more was required.”
While in the Bishop Estate case, that “something more” was present, in the Bailey Estate and Herod Estate cases, the “the hallmarks of fixed and final testamentary intention” was not present.
Much like all other aspects of thorough estate planning, showing true testamentary intention in the estate planning documents, and maintaining compliance with the Wills, Estate and Succession Act requirements, are crucial to estate plan validity, and to your testamentary wished being complied with.
If you have any questions or would like advice related to will preparation, estate planning or probate of an estate, or if you have questions in relation to matters of real estate, corporate law, intellectual property and trust matters, please contact us at 604-688-4900 or by email to Paul Barbeau at firstname.lastname@example.org or to Morgan Best at email@example.com