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Estate Law, WESA s.58

Court Orders BC Will Valid Though Will-maker Died Before Signing

Court Orders BC Will Valid Though Will-maker Died Before Signing

In March 2020, the world ground to a halt as a result of the COVID-19 pandemic. Offices were shuttered and in-person meetings were only permitted for essential purposes. In light of the pandemic, Marilyn Bishop cancelled her March 20th appointment at her lawyer’s office to execute her new will. She had already given her instructions, reviewed the draft, and made a few minor clarifications. All that remained was to have the will signed and witnessed. Unfortunately, Ms. Bishop passed away four months later, before she could execute the will. Could her unsigned document be a valid will? In the unique circumstances of Bishop Estate v. Sheardown, 2021 BCSC 1571, the BC Court used its power to order that her unexecuted will was fully effective.

Husband and wife execute mirror wills in 2014

Marilyn Bishop was married to John Bishop. They did not have any children. On June 27, 2014, Ms. Bishop executed a will naming her husband as primary executor and sole beneficiary of her estate (the “2014 Will”). Her husband’s nephew, Mr. Thrower, was named as her alternate executor and the Kelowna General Hospital Foundation (“KGH Foundation”) was named as the alternate beneficiary of the residue of her estate. Mr. Bishop made a mirror will at the same time. There was no question that Ms. Bishop’s 2014 Will was valid—it was in writing, signed by Ms. Bishop, and witnessed in accordance with the formality requirements in section 37(1) of BC’s Wills, Estate and Succession Act, S.B.C. 2009, c. 13 (“WESA”).

Instructions for new will given after husband’s death

After Mr. Bishop’s death, Ms. Bishop moved to Kamloops. Her health began to decline due to an autoimmune disorder. In 2016 Ms. Bishop’s nephew, Robert Sheardown, his wife Deborah, and their daughter Brooklyn, moved to Kamloops. The Sheardowns became very close with Ms. Bishop after moving to Kamloops, spending time together and assisting her with getting medical care. Health complications required Ms. Bishop to move to a care home in February 2020. On February 3, 2020, Ms. Bishop met with a solicitor, Matthew Livingston, from the same law firm who had drafted her 2014 Will. Ms. Bishop reviewed the 2014 Will and instructed Mr. Livingston to draft a new will naming Ms. Sheardown as executor and leaving her estate to the Sheardowns. The bequest to KGH Foundation in the 2014 Will was discussed. Ms. Bishop instructed her lawyer to remove the gift to KGH Foundation, explaining that it was her late husband’s idea and she had no connection with Kelowna.

Appointment to execute will cancelled due to COVID-19

Mr. Livingston prepared a draft will and sent it to Ms. Bishop for review on February 12, 2020. On March 3, 2020, Ms. Bishop delivered a hand-written note to Mr. Livingston responding to minor questions that he had raised. The note instructed Mr. Livingston to make minor changes and stated, “No charities at this time.” Mr. Livingston prepared a final draft. Ms. Bishop was asked whether she wanted to see the new draft or simply review it when she came to sign. In response, Ms. Bishop contacted Mr. Livingston’s office and booked a March 20th appointment to execute the will. On March 19th, Ms. Bishop had to cancel her appointment due to the COVID-19 pandemic. She was very concerned about COVID-19 because of her autoimmune disorder. Her care home did not permit visitors at that time and prohibited residents to leave other than for medical appointments.

Will-maker dies before signing; Court gives Will effect

Ms. Bishop died four months later, without executing the newly drafted will. After her death, KGH Foundation took the position that Ms. Bishop’s assets should be distributed under the 2014 Will. The Sheardowns said the COVID-19 pandemic was the sole reason why Ms. Bishop did not execute the new will. Mr. Thrower (the executor in Ms. Bishop’s 2014 Will) sought direction of the Court. Relying on the broad curative power in WESA s. 58, Justice Matthews ordered that the unexecuted 2020 will is effective. Both the document itself and the context in which it was made had the hallmarks of authenticity and fixed and final testamentary intention necessary for the Court to order it effective.

Hallmarks of authenticity and fixed and final intention

In the five and a half years following the making of the June 2014 Will, Ms. Bishop’s husband, whom she had named as her primary executor and beneficiary, had passed away, the Sheardowns had moved to Kamloops and become a regular part of her life, her health had declined, and she had moved into a care home. It was in this context that Ms. Bishop contacted the same law firm that drafted her 2014 Will to discuss her affairs. Ms. Bishop attended at the office, met with Mr. Livingston, reviewed her 2014 Will, and provided simple, clear instructions for drafting a new will. Discussions made it clear that Ms. Bishop wanted to remove KGH Foundation as a beneficiary of her will. This was not a casual or off-the-cuff meeting. Ms. Bishop met with Mr. Livingston for the purpose of discussing her plans for her estate. Mr. Livingston met with Ms. Bishop alone and did not have any concerns about testamentary capacity or undue influence. After the meeting, Ms. Bishop did not request any substantive changes to the draft. The manner in which she responded to Mr. Livingston’s questions suggested that she was satisfied with the unexecuted 2020 will and was prepared to execute it.

Why didn’t she use remote execution procedures? Does delay means she changed her mind?

KGH Foundation pointed to the fact that Ms. Bishop did not avail herself of the remote execution procedures that came into effect on May 19, 2020, more than two months before her death. However, there was no evidence that Ms. Bishop was aware of remote execution as an option. She had always interacted with Mr. Livingston in person and was likely waiting to attend to the execution of the unexecuted 2020 will in person. There was also no evidence that she changed her mind about her testamentary wishes in the months before her death. Justice Matthews was satisfied that but for the exceptional circumstances of the pandemic, Ms. Bishop would have executed the will on March 20, 2020, as originally planned; she was simply waiting for circumstances to change so that she could do so. After ordering the unexecuted document effective as Ms. Bishop’s Will, the Court awarded Mr. Thrower his costs paid out of her estate on a full indemnity basis. The Sheardowns and KGH Foundation were ordered to bear their own costs.

Bottom line on using WESA s. 58 to “cure” an invalid will

BC Courts have the power to order that an unexecuted document be given effect as a valid will. To do so, the Court must be satisfied that the unsigned document is (i) authentic; and (ii) represents the will-maker’s deliberate or fixed and final intentions regarding the disposal of their property upon death.