• Scratching Out Your Will Still Not the Best Option
  • October 26, 2015 | Author: Darren Stewart
  • Law Firm: Singleton Urquhart LLP - Vancouver Office
  • Countless tales of woe fill the textbooks found in Canadian law schools. One of the more memorable such tales—one that points out how the area of wills and estates evolves over time— is that of Saskatchewan farmer Cecil George Harris.
    On June 8, 1948, Mr. Harris was pinned under a tractor on a farm near Rosetown, Saskatchewan. While trapped, he etched into the fender of his tractor 16 words: “In case I die in this mess I leave all to the wife. Cecil Geo Harris”. Mr. Harris died a short time later and the fender was preserved, presented to the Saskatchewan court and determined to be a valid will.

    Until recently, such a story would have had a much different outcome in British Columbia as farmer Harris would have been considered to have died intestate. The province’s strict and inflexible Wills Act only allowed the court to accept a formally valid will. In other words, without exception, a B.C. will had to be signed and witnessed by two people or it would not be recognized by the court. As well, any evidence as to the will-maker’s intention in anything less than a witnessed will—no matter how compelling—would not even be considered.

    Then in March, 2014, the Wills, Estates and Succession Act (WESA) was enacted, opening up the possibility of recognizing something like farmer Harris’s scratchings as a valid will. The new Act includes Section 58, which empowers a court to “cure” a will that does not meet formal requirements and to consider other records or documents that demonstrate the will-maker’s intention.

    This provision gives the court broad discretion to consider any record, document, writing or marking on a will that may represent the intention of a will-maker, including information that is recorded or stored electronically or anything that can be read by a person or is capable of being reproduced in visible form. In recent months, B.C. courts have had opportunity to implement this newfound discretion. In Estate of Young, the deceased will-maker had made an otherwise valid will instructing her executor to distribute personal and household belongings in accordance with a memorandum, although no memorandum was attached to the will. Two other documents were located in the deceased’s home. The first document purported to match the deceased’s belongings with a named beneficiary. This document was signed by the deceased but not witnessed; the second document was unsigned and purported to instruct the deceased’s friend to distribute the items.

    The court upheld the first document and ordered that it be given effect but declined to do so for the second document. The court reasoned that the first document conveyed an “air of finality” and was generally consistent with the provisions of the formal will. By contrast, the second document was not signed nor was there evidence the deceased had shown it to anyone.

    In Beck Estate (Re), the deceased made a formally compliant will, appointing her son as executor with direction as to the disposition of her assets on her death. A few years later she wrote a document by hand purporting to make a new will. The document was signed and dated by the deceased and provided to the same son she had appointed executor.

    The court found the handwritten document did have a deliberate and final expression of the deceased’s wishes. However, some gifts and directions made by the document were unclear or unenforceable. For example, she made an outright gift of property to her daughter but directed that the property be provided to her granddaughter, presumably on her daughter’s death. The court exercised the curative power to uphold the portions of the document that made clear gifts but did not uphold gifts or instructions made by the document that were unclear.

    In another case where Section 58 of the new Act came into play, Yaremkewich Estate (Re), the deceased did not leave a valid will. However, she executed a “will kit” template appointing executors, providing direction as to the distribution of her assets, and giving burial instructions. The template referred to other “attached instructions” and was stored with other documents in an unsealed envelope. The template was signed by two witnesses, however, both deposed that when they signed the template it was blank, and no further documents or instructions were attached. At the time, the will-maker advised that she intended to make a list of charities to benefit from her estate.

    The court found that the will-maker intended to comply with formal requirements and found that the documents together formed an authentic representation of the will-maker’s wishes to be upheld.

    In each case discussed above, the court reminds us that the outcome of these applications will depend entirely on the specific facts in each case that comes before the courts. While Section 58 of WESA is a step forward in ensuring that the wishes of will-makers are met in some circumstances, applying for such curative relief will be expensive and a burden on your executor and heirs.

    As unlikely a fate as Cecil Harris’s seems, life can be unpredictable. The new Act expands the court’s discretion to consider just about anything to represent your dying wishes, but it does not go so far as to provide an excuse for not having an up-to-date and formally compliant will.