Modern estate legislation in British Columbia gives courts greater flexibility to recognize testamentary documents that do not strictly comply with formal will-making requirements. However, courts will only exercise that power when there is clear evidence that a document reflects the deceased’s final testamentary intentions.
The recent Supreme Court of British Columbia decision in Kasper v. Collins demonstrates how challenging it can be to rely on an unsigned draft will. In this case, a stepson of the deceased asked the court to set aside probate of a signed will and instead recognize a lawyer’s draft will that had never been executed.
The court ultimately declined to do so, finding that the evidence did not establish that the draft will represented the deceased’s fixed and final testamentary intentions.
Stepson Asked Court to Recognize Draft Will
The case arose after the death of Franklin Collins in October 2020. Following his death, one of his biological sons obtained probate of a will dated June 19, 2019.
The plaintiff in the litigation was the deceased’s stepson. The stepson asked the court to set aside the probate order and instead recognize a draft will prepared shortly before the deceased died.
The stepson relied on section 58 of the Wills, Estates and Succession Act (WESA). This provision allows courts to cure deficiencies in testamentary documents that do not meet the formal requirements of a valid will.
The stepson argued that although the draft will had never been signed, it reflected the deceased’s final wishes and should therefore be given legal effect.
The Deceased’s Complex Family Relationships
Understanding the family dynamics was central to the dispute. The deceased had three biological children from his first marriage. Later in life, he married a second spouse who had three children of her own from a previous relationship. The couple raised all six children together as one family for decades.
Following the death of his second spouse in 2016, the deceased inherited her assets and executed a will that treated all six children equally.
That earlier will expressly stated that equal treatment of the biological and stepchildren reflected the closeness of the family. However, the deceased’s estate planning changed in the years that followed.
The 2019 Will
In 2019, the deceased retained a lawyer to revise his estate plan. According to the drafting lawyer, the deceased instructed her that he wished to disinherit four of the children. These included:
- One biological son, whom he believed struggled with drug addiction; and
- His three stepchildren, whom he believed had already received property from him.
As a result, the 2019 will left the residue of the estate only to two of his biological sons. This will was formally executed in hospital and later admitted to probate after the deceased’s death.
The Alleged Final Change of Heart
In August 2020, the deceased was diagnosed with cancer and admitted to intensive care. Around this time, the stepson’s former spouse, who remained close to the deceased, claimed that he wanted to change his will again. According to her evidence, he intended to revert to the earlier plan of dividing his estate equally among all six children.
She contacted the lawyer who had prepared the 2019 will and relayed this alleged change of intention. The lawyer attempted to meet with the deceased to take instructions and assess his testamentary capacity. However, several difficulties arose.
The Creation of the Draft Will
Based on information provided during communications with the deceased’s family members, the lawyer prepared a draft will.
The draft will would have appointed a different executor, maintained certain specific gifts, and distributed the residue of the estate equally among all six children.
The lawyer planned to meet with the deceased at his care facility to review and sign the new will. However, before the meeting could take place, the deceased died. As a result, the draft will was never signed or formally executed.
Section 58 of WESA and Curative Powers
Section 58 of WESA gives courts the ability to validate documents that do not comply with the usual requirements for a will.
Traditionally, wills law required strict compliance with formalities such as signatures and witness attestations. Failure to meet those requirements would render a document invalid.
WESA introduced a more flexible approach. Under section 58, courts may recognize a non-compliant document if satisfied that it represents the deceased’s testamentary intentions. However, the applicant must prove two critical elements on a balance of probabilities:
- The document is authentic.
- The document reflects the deceased’s deliberate, fixed, and final intentions regarding the distribution of their estate.
Because the deceased cannot testify, courts often rely heavily on surrounding evidence to determine whether these criteria are met.
Court Analyzed Instructions for Draft Will
The court carefully reviewed the evidence surrounding the alleged instructions for the draft will. A key issue was whether the deceased had actually expressed clear and final instructions to change his will.
The stepson relied heavily on evidence from the deceased’s former daughter-in-law, who claimed to have spoken with him about reverting to the earlier estate plan. However, the court found several problems with this evidence.
Lack of Clear Testamentary Instructions
First, the communications describing the conversation did not clearly show that the deceased had decided to make a new will. The evidence suggested that he may have simply agreed with a suggestion that an earlier will better reflected his wishes. In the court’s view, this did not amount to a firm instruction to change his estate plan.
The evidence also indicated that the deceased may have been trying to please the person speaking with him rather than expressing a final decision.
Concerns About Testamentary Capacity
The court also examined the deceased’s health and mental state in his final weeks. Medical records and other evidence suggested that he experienced confusion and disorientation during that period. There were reports that he sometimes believed he was in a different location or time.
These circumstances raised concerns about whether he had the capacity to provide valid instructions for a new will. While the court did not need to conclusively determine the issue of capacity, the evidence made it more difficult to accept that the draft will represented a settled intention.
The Telephone Conversation With the Lawyer
Another critical issue was a telephone conversation between the drafting lawyer and the deceased’s family member.
The stepson’s evidence suggested that the deceased participated in the call and confirmed his instructions. The lawyer, however, testified that she spoke only with the family member and did not hear the deceased participate. Her contemporaneous notes supported that account. This discrepancy undermined the argument that the deceased had personally confirmed the instructions for the draft will.
Court Couldn’t Conclude Draft Will Reflected Deceased’s Final Wishes
Ultimately, the court concluded that the stepson had not met the burden required under section 58. The evidence did not establish that the draft will reflected the deceased’s final testamentary intentions. Instead, the court found that the deceased had not clearly adopted the contents of the draft will before his death.
As a result, the court refused to recognize the unsigned document as a valid will. The previously probated 2019 will therefore remained in effect.
Both Parties’ Costs Payable From the Estate
Although the stepson was unsuccessful, the court ordered that both parties’ legal costs be paid from the estate. Courts often take this approach in estate disputes when the litigation arises from uncertainty created by the deceased’s conduct rather than misconduct by the parties.
In this case, the deceased’s comments during his final weeks created genuine uncertainty about whether he intended to change his will. Because of that uncertainty, the court concluded it was appropriate for the estate itself to bear the cost of resolving the issue.
Meridian Law Group: Vancouver Estate Litigation Lawyers Advising on Will Disputes
Disputes over wills and estate administration often arise when testamentary documents are unclear, incomplete, or created during periods of declining health.
If you are involved in a dispute regarding the validity of a will, the interpretation of testamentary documents, or claims under the Wills, Estates and Succession Act, experienced legal guidance is essential. The estate litigation lawyers at Meridian Law Group represent executors, beneficiaries, and family members in estate disputes across British Columbia. Contact the firm online or call (604) 687-2277 to schedule a confidential consultation to protect your interests in an estate dispute.
