A handwritten document can be effective as a will or codicil to a will if the court is satisfied that the document is a deliberate or fixed and final expression of the deceased’s intention as to the disposal of property upon death. Testamentary intention means more than an expression of how a person would like their property to be disposed of after death. The key question is whether the document in question records a “deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death” at the material time. Such a finding is intensely context and fact specific.
In a recent estate litigation case, Henderson v. Myler, 2021 BCSC 1649, a BC woman left an undated, unsigned note in a lockbox with her last will and testament. While the note did concern the disposition of her property on death, the court ultimately concluded that the note did not reflect the woman’s fixed and final intention to change her earlier will and declined to give it effect as a codicil or alteration to her existing will.
Eleena Murray died on October 4, 2017 at 99 years of age, leaving a $1.85 million estate. She did not have children and was predeceased by her husband. She had no immediate family. Ms. Murray left a will dated January 25, 2013 (the “2013 Will”), prepared by a notary, which provided specific cash gifts to members of her extended family totalling about $500,000. The “rest and residue” of her estate was to go to the BC Society for the Prevention of Cruelty to Animals (“SPCA”). After Ms. Murray’s death, the 2013 Will was found in a lockbox with a handwritten note (the “Note”), which among other things, purported to increase specific amounts payable to certain family members named in the 2013 Will; delete gifts to other family members; and change the gift to the SPCA from the remainder of the residue—estimated to be $1.4 million—to a cash gift of $100,000.
The requirements for making a valid will or codicil are set out in section 37 of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 (“WESA”). To meet the requirements for formal validity, the document must be in writing, signed by the will-maker, and signed at its end by two or more witnesses in the presence of the will-maker. The formal requirements ensure there is reliable and permanent evidence of the will-maker’s testamentary intention and the terms of the will. They also serve a cautionary function by impressing upon the will-maker the solemnity, finality, and importance of his or her actions in making his or her “last will and testament.” Ms. Murray’s 2013 Will was in writing, signed by Ms. Murray, and signed at its end by two or more witnesses in the presence of Ms. Murray.
The Note, on the other hand, failed to meet the formal requirements: it was unsigned and not witnessed or dated. Also problematic was that some of the names listed in the Note were in Ms. Murray’s handwriting, but the Note also had markings on it made by different people in different ink. Names were crossed out and dollar amounts were different from the gifts made in the 2013 Will. There was no evidence as to when the Note was prepared, but there was evidence that Ms. Murray reviewed the 2013 Will and the Note on May 4, 2017 (her 99th birthday) with two close friends who wanted to help ensure Ms. Murray’s affairs were in order.
Ms. Murray’s closest relatives—her nieces and nephews Verna, Brian, Daniel, and Ron (the “Plaintiffs”)—commenced an action under WESA s. 58 seeking a declaration that the Note is a valid testamentary document which changed the disposition of Ms. Murray’s estate under the 2013 Will. The Court has power under WESA s. 58 to “cure” a document that does not meet formal requirements. However, the greater the departure from the requirements of formal validity, the harder it may be for a court to be satisfied that the document represents the deceased’s testamentary intention.
There was a lot at stake if the Plaintiffs’ claim succeeded because the cash gifts set out in the Note did not exhaust Ms. Murray’s estate. The Note purported to dispose of $540,000 in specific gifts to extended family and friends, leaving $1.4 million in the residue. As a result, if the Note were given effect as a codicil to her 2013 Will, the balance of her estate would pass on an intestacy to be divided among the Plaintiffs. By comparison, under the 2013 Will, Ms. Murray had provided limited cash gifts of $40,000 or $60,000 to each of Verna, Daniel, and Ron. Ms. Murray deliberately left her nephew Brian out of her 2013 Will. In the Note, Verna’s cash bequest was increased to $100,000, but two of the Plaintiffs, Ron and Daniel, were specifically crossed out, and Brian was not included at all.
Ms. Murray had the requisite testamentary capacity at the time of the May 4, 2017 meeting and could have executed the Note as a codicil to the 2013 Will. However, it was not clear on the facts that Ms. Murray reviewed and approved the version of the Note, and there was no evidence that she appreciated the effect of the Note on the disposition of her estate. Both friends who met with Ms. Murray on her 99th birthday said they did not discuss the residue of her estate. They all understood there was “more work to be done”, given the remaining funds in Ms. Murray’s estate which were not addressed in the Note. They discussed that Ms. Murray needed to go see a legal professional to execute a formal will—a step Ms. Murray was aware of, given that she had previously gone to legal professionals for her estate planning needs. Ms. Murray never visited a lawyer or notary to change her 2013 Will. The effect of not dealing with the sizeable remaining residue weighed strongly against the Note representing Ms. Murray’s fixed and final intentions. It could not have been Ms. Murray’s fixed and final testamentary intention to allow 75% of the residue of her estate, approximately $982,500, to go to her three nephews, when she had made it clear she did not wish to leave them anything. The Plaintiffs’ action was dismissed and the SPCA received the residue of the estate under the terms of the 2013 Will.
Not every expression made by a person, whether orally or in writing, concerning the disposition of his or her property on death embodies his or her testamentary intentions. BC Courts have power under WESA s. 58 to “cure” a document that does not meet formal requirements, giving it effect as a valid will or codicil. The key question is whether it records a “deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death.” The greater the departure from the requirements of formal validity, the harder it may be for a court to be satisfied that the document represents the deceased’s testamentary intention.
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