When British Columbians turn their mind to estate planning, they often ask: Can a notary prepare a will in BC? The answer is yes – but only certain types of wills.
The Court of Appeal for British Columbia recently affirmed the limits on notaries’ authority to prepare wills in Society of Notaries Public of British Columbia v. Law Society of British Columbia, 2017 BCCA 448. The issue in that appeal was whether notaries are authorized to draw wills containing life estates, including limited life estates, or trusts in which the beneficial interest or interests vest immediately on the death of the will-maker. Frankel J.A. for the unanimous Court of Appeal rejected the notaries’ argument for expanded authority, stating definitively that a will in which the beneficial interest vests immediately on the death of the will-maker, but distribution of possession or legal title or both is postponed, is not within the scope of a BC notary’s scope of authority.
Will-drafting authority under the BC Notaries Act
A notary’s power to prepare a will in BC is set out in s. 18(b) of the Notaries Act, R.S.B.C. 1996, c. 334. A notary in good standing may do the following:
(b) draw and supervise the execution of wills
(i) by which the will-maker directs the will-maker’s estate to be distributed immediately on death,
(ii) that provide that if the beneficiaries named in the will predecease the will-maker, there is a gift over to alternative beneficiaries vesting immediately on the death of the will-maker, or
(iii) that provide for the assets of the deceased to vest in the beneficiary or beneficiaries as members of a class not later than the date when the beneficiary or beneficiaries or the youngest of the class attains majority;
The BC courts have previously held that s.18(b)(i) of the Notaries Act is “directed at simple wills, where the gift is distributed both legally and beneficially, immediately” and ss. 18(b)(ii) and (iii) only apply in limited situations: see Law Society of British Columbia v. MacDonald, 2013 BCSC 1204 at paras. 107−109.
Notaries’ argument for expanded scope of will-drafting authority
Reduced to its core, the notaries’ argument was that the words “distributed immediately on death” in s. 18(b)(i) should be interpreted as “vested immediately on death”. By way of example, the BC notaries argued that when a will-maker leaves real property to A subject to B having a life interest in that property, since A’s interest vests immediately, the property has been “distributed immediately” to A, notwithstanding the fact that A is not entitled to possession or use of the property until B dies.
Frankel J.A. was unable to accept the notaries’ argument. The words “distributed immediately” in s. 18(b)(i) of the Notaries Act are not synonymous with “vested immediately”. The section requires that the entire interest be distributed immediately, not simply vested. Distribution and vesting have long been treated as distinct concepts in wills and estate matters. For example, Frankel J.A. noted that it is clear from other BC laws (such as the Wills, Estates and Succession Act) that “distribute” and its variations are used to refer to the act by which the legal and beneficial interest in assets are given out or delivered to those entitled to receive them. The Legislative Assembly used the expression “distributed immediately” in s. 18(b)(i) of the Notaries Act in its ordinary sense, namely, to describe a will in which the will-maker directs the assets of the estate to be immediately given out or delivered to those entitled to receive them; in other words, a will that directs the immediate transfer of both the legal and beneficial interest in the assets of the estate to the beneficiaries. A will in which the beneficial interest vests immediately on the death of the will-maker, but distribution of possession or legal title or both is postponed, is not within the scope of s. 18(b)(i) of the Notaries Act.
The bottom line: Can a notary prepare a will in BC?
The answer to the question “Can a notary prepare a will in BC?” is yes; however, notaries are limited to drawing the three “simple” types of wills set out in the Notaries Act. Notaries are not authorized to prepare a will in BC if the will is to contain life estates or trusts.