When preparing a Will in British Columbia, it is important to adhere to the formal requirements set out in the Wills, Estates and Succession Act (“WESA”). These formal requirements are in place to ensure the Will is valid and legally binding and minimize future potential Will challenges or disputes. However, the courts have shown that, in some circumstances, an informal Will may be deemed valid. In a recent case of McGavin Estate (Re), the Supreme Court of British Columbia was asked to confirm the scope of “validation power” under section 58 of the WESA.
Formal Requirements and Non-Compliance Consequences
Under the Wills, Estates and Succession Act, a Will must be in writing and signed by the Will-maker (testator) in the presence of two witnesses. The beneficiaries cannot be beneficiaries or spouses of beneficiaries listed in the Will.
Aside from the physical requirements, the testator must have the mental capacity to make a Will. The testator must be of sound mind to understand the nature and consequences of their Will. Further, the testator must have an appreciation for the extent of their property, as well as the claims that others may have to it.
If these requirements are not met, the Will may be deemed invalid, which may give rise to estate disputes, Will challenges, and distribution complications, as the estate may be distributed under the laws of intestacy rather than the deceased’s wishes.
Deceased Executes Incapacity Documents in Hospital
In McGavin Estate (Re), the deceased, Marian, died in 2022 at 76 years old and did not have a spouse or children. Under the Wills, Estates and Succession Act rules, if the testator died without a Will, her estate would pass entirely to her brother, Morris.
The deceased did not have a relationship with her brother for several years. She was, however, close with her brother’s daughter and her niece, Lisa, and Lisa’s three children. The deceased was also not close to her other niece, Tamara. However, she had expressed her intention to leave some of her estate to be distributed between Tamara’s two children.
In November 2019, the deceased’s doctor confirmed that she had sufficient capacity to execute a Will. She met with a lawyer while she was at a hospital in North Vancouver to address incapacity documents. At this meeting, the deceased executed an enduring power of attorney and a representation agreement appointing her niece, Lisa, as her representative and attorney.
Estate to Be Distributed Among Select Family Members
The deceased was moved to a long-term care facility, and between December 2019 to February 2020, she spoke with her lawyer several times and met with them twice as she contemplated making a Will.
During these meetings, she told her lawyer that she did not want to include her brother as a beneficiary of her estate. Instead, she wanted to appoint Lisa as her executor, with most of her estate benefitting Lisa and her three children. By this time, the deceased had already named Lisa the designated beneficiary of her registered accounts. She also told her lawyer she wanted a smaller portion of her estate to go to Tamara’s two children.
In January 2020, the deceased received a letter from her lawyer, which provided an overview of her assets. In this letter, the deceased made notes outlining her testamentary intentions, which included writing out the names of Lisa, her children, and Tamara’s children and writing “no $ for” Morris and Tamara.
Pandemic Increases Urgency for the Deceased’s New Will
In March 2020, the sole issue regarding the deceased’s new Will was how she wanted to distribute the residue. However, by this time, the COVID-19 pandemic had placed the deceased’s long-term care facility into a strict lockdown, and the deceased’s niece and lawyers acknowledged the importance of creating a new Will as quickly as possible.
On March 18, 2020, the deceased spoke with her lawyer on the phone and subsequently sent a reporting letter which outlined the following proposed distribution for her estate:
- 60% to her niece, Lisa;
- 30% to be equally divided between Lisa’s three children; and
- 10% to be equally divided between her niece and Tamara’s two children.
The deceased’s lawyer confirmed that she received the reporting letter, and there were no further meetings or telephone calls regarding her updated estate plan. Unfortunately, due to the deceased’s ongoing health issues, the pandemic restrictions, hesitations regarding legal fees, and the fact that the deceased could not use portable technology, she did not execute a new Will per the formalities set out by the Wills, Estates and Succession Act.
Deceased Confirms Lawyer’s Reporting Letter Reflected Her Intentions
When the deceased moved to a new care facility at the end of 2021, she brought her estate planning documents which were kept in a folder labelled “Lawyer’s info re estate.” During a visit with Lisa in 2022, the deceased reviewed these documents and confirmed that the March 2020 reporting letter still accurately outlined her testamentary intentions.
In July 2022, the deceased passed away, leaving behind an estate valued at approximately $1.5 million. Following her death, Lisa applied to the Court for an order to validate the March 2020 reporting letter and the deceased’s annotated January 2020 letter as her testamentary intentions under section 58 of the Wills, Estates and Succession Act. Lisa also asked that these documents be declared fully effective as the deceased’s last Will.
Although he would have otherwise been the sole intestate heir under section 23(2)(c) of the WESA, the deceased’s brother did not oppose the relief sought by Lisa.
Documents in Question Must Be “Authentic” and Represent the Deceased’s Intentions
The Court acknowledged the circumstances of this case were unusual and that the documents Lisa sought to be validated and admitted to probate were not “draft wills or documents formatted along the lines of a typical will.” The Court noted that the March 2020 reporting letter also invited the deceased to amend the distribution set out in the letter and asked her to confirm whether she wanted to proceed with preparing a Will.
The Court’s analysis was led by the test under section 58 of the Wills, Estates and Succession Act, which requires that a document, record or writing be “authentic” and represent “the deliberate or fixed and final intention” of the deceased. It is important to note that a “fixed and final intention” does not equate to an irrevocable intention. Courts will rely on extrinsic evidence to determine the deceased’s testamentary intentions.
The Court referenced previous cases, including Re Hadley Estate, which gave section 58 a “broad and liberal” interpretation. Justice McDonald also referenced the case of Re Feron from the New Zealand High Court, which was similar in fact, and the legislation was broad scope, similar to the WESA. In Re Feron, the Court validated solicitors’ notes and email correspondence between the solicitor and the client as a “skeleton” of the deceased’s Will.
The Court Validates the Lawyer’s Reporting Letters as Valid Will
Upon review of the evidence, the Court found that the deceased’s handwritten notes on the January 2020 reporting letter were reflected in the March 2020 reporting letter. Both letters were kept in the labelled folder, which the deceased ensured moved with her from one care facility to another.
Despite the deceased’s failure to make a Will in accordance with the formal requirements set out in the Wills, Estates and Succession Act, this failure was due to the pandemic lockdowns that made it “extremely challenging” for the deceased to proceed with “executing a Will.” The Court also found no evidence to suggest that the deceased had changed her mind concerning her will after receiving the March 2020 reporting letter.
The Court decided to exercise its discretion and validated the January 2020 and March 2020 reporting letters as the deceased’s last Will. Justice McDonald found that the testamentary documents in question were authentic and contained “the full, final and fixed intention of the deceased.”
Courts May Validate Testamentary Documents Depending on the Facts of the Case
In this case, if the Court did not validate the documents in question, then the entire estate would have passed to her brother under intestacy rules, which contradicted the deceased’s final wishes.
This decision serves as a reminder that the Court may validate a vast range of documents, even when the formalities under the Wills, Estates and Succession Act have not been met. Specifically, the Court has described section 58 as a broad provision which should be approached largely and liberally. Therefore, documents which are not a formal Will may be validated and be treated as one’s testamentary intentions.
Contact Meridian Law Group in Vancouver for Skilled Representation in Estate Disputes
The experienced estate litigation team at Meridian Law Group is ready to help when disagreements arise about the distribution of estates. Whether you are seeking to challenge a will or have questions regarding estate distribution, our lawyers can help. To schedule a consultation with a member of the estate team, call us at (604) 687-2277 or fill out our online form.
