Can a handwritten document purporting to change a will be given legal effect via BC estate litigation? In Cook Estate (Re), 2019 BCSC 417 a woman with an existing will composed a handwritten document several days before she became unresponsive. She died two days later. The handwritten document purported to alter her will by excluding one of her three children as a beneficiary, but it did not meet the formal requirements of a valid will. BC estate litigation was commenced by the executor of the estate, asking the court to decide whether that document represented the testamentary intentions of the deceased and if it could be given legal effect as though it were made as part of her will.
Facts in the Cook BC estate litigation
In the 1980s Eleanor Cook had two children, Jennifer and Aaron, with her first husband. Eleanor divorced her first husband and remarried a man named Alec, with whom she had a third child, a daughter named Laurel born in 1994. Eleanor made a will on April 26, 2005 in which she divided her estate equally between Jennifer, Aaron, and Laurel. On May 3, 2012, Eleanor made a codicil in which she appointed Jennifer as the sole executor.
According to Jennifer, by 2016 Eleanor expressed concern about treating her three children fairly. She believed that Alec would leave most of his estate to their daughter, Laurel, and leave nothing for Jennifer and Aaron. Eleanor repeatedly told her friends and family that she wanted to leave her assets to Jennifer and Aaron to be “fair.” Indeed, Alec’s will provided solely for Laurel and left nothing for Jennifer and Aaron, a fact that Eleanor was aware of.
Handwritten document that gave rise to BC estate litigation
Again, according to Jennifer, Eleanor continued to consider her estate plan in the weeks before she died. At some point after December 2, 2016, Eleanor reviewed a photocopy of the 2005 Will, crossed out the bequest of a 1/3 residual share to Laurel and initialled the change. Then on February 13, 2017, Eleanor told her daughter-in-law Keanna (Aaron’s wife) that she wanted to write down her intentions regarding her estate so that they would be known when she passed away. Eleanor then wrote the following document which stated:
I Eleanor Cook give Jen Schmidt and Aaron Schmidt Equally My estate. An accounting must be done by an accountant. Laurel will be taken care by her father Alec Alfred Cook.
According to Keanna, when writing the document, Eleanor made some handwriting mistakes, which she crossed out and initialled. Eleanor then inserted the date of “February 13, 2017” at the bottom of the document and signed it. She asked Keanna to witness her signature, and to sign the document as well. After making the February 13 document, Eleanor showed it to her childhood friend, Ms. Schmitz, to confirm that it represented her wishes. Ms. Schmitz questioned whether it was proper to remove Laurel from the distribution of the estate. She also queried whether the document would have any legal effect. Eleanor told Ms. Schmitz that she would call her lawyer.
Will-maker died before existing will changed
On February 23 Eleanor gave the February 13 document to her lawyer and expressed her desire to add it to her will. The lawyer took possession of the document, brought it back to his office and put it in his file. By the next morning, Eleanor’s health had deteriorated dramatically, and she was non-responsive. She died two days later. The handwritten document did not come to the parties’ attention until September 2018 when Eleanor’s lawyer discovered it in his file. Keanna apparently did not advise Aaron, Jennifer, or Laurel about the existence of the February 13 document and her involvement in its preparation until after the document was discovered by Eleanor’s lawyer in September 2018.
BC estate litigation arises from failure to meet formality requirements
Our wills and estates lawyers recently discussed how to avoid BC estate litigation by making a will that meets the formality requirements set out in the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 [“WESA”]. We have also discussed the formality requirements for making changes to a will, and how the court can in certain circumstances “cure” deficiencies to give them legal effect pursuant to s. 58 of WESA.
In Cook Estate, Jennifer commenced BC estate litigation to determine the legal effect of the handwritten document. Jennifer acknowledged that the handwritten document made on February 13, 2017 did not comply with formality requirements of WESA since there was only one witness, however, Jennifer’s position was that the document was clearly authentic. Jennifer asked the court to make an order pursuant to s. 58(2) of WESA declaring that the handwritten document represented the testamentary intentions of the deceased and an order pursuant to s. 58(3) of WESA declaring the February 13 document to be fully effective as though it had been made as the will or part of the will of the deceased.
How the discretion to cure deficiencies applies in BC estate litigation
The court in Cook Estate confirmed that s. 58 of WESA is a broad curative provision. It provides the court with the discretion to validate a document which has not been made in compliance with the formalities of will-making found in s. 37 of the WESA, and allow it to be admitted to probate, if satisfied that the document “represents the testamentary intentions of the will-maker.” The purpose of this remedial provision is to avoid the defeat of a will-maker’s genuine intentions due to some technical defect. The applicable test under s. 58 of the WESA has two main parts:
(1) whether the record, document, or writing is “authentic”; and
(2) whether the record, document or writing represents the deliberate or fixed and final intention of the deceased person.
The civil standard of the balance of probabilities applies and is intensely fact-specific. WESA does not require “substantial compliance” with the formalities of will-making before a document can be validated, but the further a document departs from the formal requirements, the harder it may be for the court to find it embodies the deceased’s testamentary intention. The court may consider a wide range of evidence to determine the deceased’s testamentary intentions, include the presence of the deceased’s signature, the deceased’s handwriting (see here for our BC estate litigation lawyers’ discussion of the validity of handwritten wills), witness signatures, revocation of previous wills, funeral arrangements, specific bequests, the title of the document, and whether the language in the document connotes a sense of finality (as opposed to being precatory, which is more in the nature of wishes or requests).
Limited application of s. 58 test in Cook Estate litigation
Given that the BC estate litigation in Cook proceeded by way of summary application, the only question the judge was able to determine was the authenticity of the February 13 document. There was overwhelming evidence that the February 13 document was drafted and signed by Eleanor, as well as witnessed by Keanna. Keanna’s evidence was supported by Eleanor’s conduct, particularly her statement to her friend Ms. Schmitz and the fact she gave the original to her lawyer on February 23, 2017. Mr. Justice Abrioux concluded that the February 13 document was authentic.
However, Mr. Justice Abrioux was not able to make further findings on a summary basis, holding that bona fide triable issues existed, and it would be premature to decide the question of whether the February 13 document represented Eleanor’s deliberate or fixed and final intention. Jennifer, Lauren and Alec had brought concurrent BC estate litigation raising issues including undue influence and testamentary capacity. Justice Abrioux ordered the parties in all three actions to attempt to agree on a comprehensive case plan order to streamline the trial of the remaining issues.
As such, the parties in the Cook Estate matter will have to wait to get a final determination as to whether the handwritten document has legal effect. Our BC estate litigation law team will monitor for further rulings in this case. Check back next week for our discussion of how costs were dealt with in this and other recent BC estate litigation matters.