Family, Estates & Trusts 


Unsigned Will Given Effect Despite Fluctuating Mental State of Will-Maker

In this article we will discuss important points from Gibb Estate (Re), 2021 BCSC 2461 on mental capacity, validity of wills, and the court’s duty to give effect to a deceased’s intentions whenever possible. While in the hospital after suffering a heart attack, a BC man named John Gibb requested that his lawyer prepare a new will. Its contents were confirmed in a phone call mere days later, with a date set on which the new will would be executed. Unfortunately, Mr. Gibb died on the day the will was to be signed. Relying on the powers in s. 58 of the Wills, Estates and Succession Act, the court ordered that the unsigned will was effective.Section 58 exists so that the testamentary intentions of a deceased person are not defeated for mere formal non-compliance.

Will no longer reflects wishes due to separation from spouse

On November 8, 2017, John Gibb suffered a major heart attack while on business in Campbell River, BC. The 68-year-old BC man was admitted to the intensive care unit of the Campbell River Hospital (“CRH”). The next morning, Mr. Gibb requested to see his lawyer, Kevin Simonett, who attended at CRH immediately to take Mr. Gibb’s instructions to prepare a new will. Mr. Gibb had prepared a will in 2011 naming his then-wife Moira McPhedran a sole executor and beneficiary of his estate; if she predeceased him, the alternate equal beneficiaries were Ms. McPhedran’s two children from a previous relationship and Mr. Gibb’s two sisters (the “2011 Will”). Mr. Gibb had no children of his own. Ms. McPhedran’s children were both adults when her and Mr. Gibb’s relationship began in 1997. Mr. Gibb told Mr. Simonett that the 2011 Will no longer reflected his wishes and that he wanted to be certain it was void. Mr. Gibb and Ms. McPhedran had separated in 2014 but were not yet divorced.

Instructions to prepare new will while hospitalized

Mr. Simonett met with Mr. Gibb at the hospital on November 9. Mr. Gibb stated that he wanted no part of his estate to go to Ms. McPhedran because of alleged ill-treatment of him by her prior to their separation. He instructed Mr. Simonett to draft a statutory declaration to that effect (the “Declaration”), and to prepare a new will naming his long-time friend, John Service, as executor and distributing his estate as follows (the “2017 Will”):

a)    His residential property at 2585 Lower Road, Robert’s Creek, British Columbia, free of encumbrances, to his friend Carol Greaves; and

b)    The residue of his estate be divided into two shares, with Ms. Greaves to receive one share and the John Service and his wife, Carol Service, to receive the remaining share jointly.

As a result, Mr. Gibb’s spouse was no longer executor and sole beneficiary, and Mr. Gibb disinherited his step-children (Galen and Kara) and his sisters.

New will prepared, but will-maker died before it could be signed

Mr. Simonett prepared the new will on November 10 and Mr. Gibb was transferred to Royal Jubilee Hospital (“RJH”) in Victoria, BC. On November 11, Mr. Simonett drove from Campbell River to Victoria to execute the 2017 Will. When he arrived, Mr. Gibb’s condition had declined. Medical staff advised that he was not capable of dealing with legal documents at that time. On November 14 Mr. Simonett phoned RJH to talk to Mr. Gibb. Mr. Gibb felt that his health had improved. He told Mr. Simonett that he was up, walking and feeling well and Mr. Simonett should not bother driving back to Victoria as he was going to “beat his medical issues.” However, at Mr. Simonett’s suggestion Mr. Gibb agreed to review the 2017 Will line-by-line to confirm it represented his wishes. They spent about 30 minutes on the phone. Mr. Simonett read the entire 2017 Will to Mr. Gibb, stopping after each sub-section to confirm its effect and his wishes. Mr. Gibb confirmed each sub-section to him and did not direct any changes. They then went through the same process with the Declaration. There was nothing in the conversation with Mr. Gibb that gave Mr. Simonett reason to doubt that Mr. Gibb had regained his legal capacity. As Mr. Simonett had existing plans to be in Victoria on November 17, Mr. Gibb agreed to his suggestion that he drop by RJH to execute the 2017 Will on that date. Unfortunately, Mr. Gibb passed away on November 17 while Mr. Simonett was en route to Victoria. The 2017 Will was never signed.

Stepson says unsigned will not valid

Mr. Gibb died leaving a complex estate comprising of an interest in at least 13 companies and various real estate holdings. There was uncertainty as to the proper executor and beneficiaries of Mr. Gibb’s estate as he left both the unsigned 2017 Will and the 2011 Will. Grant Thornton Ltd. was appointed as temporary administrator of the estate in December 2017. On October 30, 2019, John Service delivered notice of his intention to apply for permanent administration of the estate. Ms. McPhedran’s son, Galen, opposed the applicant. Galen—who was disinherited in the 2017 Will—argued that Mr. Gibb lacked testamentary capacity at the time the 2017 Will instructions were given and that the 2017 Will did not represent Mr. Gibb’s testamentary intentions.

Making a valid will, and curing an imperfect will

There are certain technical requirements for a will to be valid. 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. This is set out in section 37 of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 (“WESA”). However, WESA also contains a “curative” provision. WESA s. 58 gives the court the power to prevent imperfect compliance or a lack of compliance with the technical requirements of a will from defeating the testamentary wishes of the deceased. Before a court can grant relief under s. 58 of WESA it must be satisfied that the testamentary document is authentic and that it represents the deceased person’s fixed and final testamentary intentions.

Mental state of will-maker

There was no question in the Gibb Estate litigation that the 2017 Will was authentic. The real issue was whether the 2017 Will represented Mr. Gibb’s testamentary intentions. A crucial part of establishing that the document in issue represents the deceased person’s testamentary intentions is to show that the deceased had testamentary capacity at the relevant time. That capacity requires an individual to understand the nature and extent of their property, the persons who are the natural objects of their estate, the testamentary provisions they are making, and to appreciate these factors as they inter-relate. Mr. Gibb’s mental state fluctuated between the time of his heart attack and his death 9 days later. Medical records noted multiple incidents of confusion and disorientation, along with other periods of being calm and oriented. At times he clearly lacked capacity, while at others he was much more alert and had the necessary capacity.

Relevant times for assessing capacity

The times when testamentary capacity is necessary: (1) are when instructions are given for the purported will, and, (2) when, in the normal course of events, the purported will would have been executed. In the Gibb Estate litigation, the relevant times were November 9 when Mr. Simonett attended the hospital to receive instructions, and November 14 when Mr. Gibb and Mr. Simonett reviewed the 2017 Will over the telephone.

Mental capacity when will instructions given

The events on November 9 bore the hallmarks of a new will being desired and steps taken to have it prepared. Mr. Gibb initiated the process by requesting to see his lawyer for that purpose and the result was a draft will valid on its face in that it is complete, revokes an earlier will, and is not ambiguous nor does it result in a partial intestacy. Mr. Simonett was alert to the issue of capacity, as any lawyer should be when visiting a client in intensive care. He approached the situation as a professional taking instructions for a will and was satisfied that Mr. Gibb sufficiently understood his assets, potential claims on those assets, and the disposition he wished to effect. Mr. Gibb was also aware that he had a previous will he wished to change and had reasonable explanations for making those changes. It made sense given the circumstances at the time, including Mr. Gibb’s choice of executor and alternative executor and his choosing to benefit his friends, not his estranged spouse. While her children were potentially beneficiaries under the earlier 2011 Will, he had no legal obligations to them. They were adults when Mr. Gibb and Ms. McPhedran commenced living together. Mr. Simonett’s account of that meeting is corroborated by others present at the hospital and the CRH social worker’s notes. The Court was satisfied that on November 9, Mr. Gibb had the capacity required to provide the 2017 Will instructions to Mr. Simonett. Had the will been prepared and signed at that time, it would have been a valid will as Mr. Gibb had the capacity.

Validity of will turns on phone call with lawyer

The validity of the 2017 Will turned on the November 14 telephone call between Mr. Gibb and Mr. Simonett where the will prepared on Mr. Gibb’s November 9 instructions was reviewed. Galen’s position was that a phone call review was insufficient to establish knowledge and approval. Galen submitted that Mr. Simonett was simply not able to adequately assess Mr. Gibb’s testamentary capacity over the phone, nor to gauge Mr. Gibb’s knowledge and approval of the 2017 Will. Galen argued that his lawyer should have been physically present to make that assessment. Mr. Simonett did not have the benefit of observing Mr. Gibb during the conversation, nor did Mr. Gibb have the benefit of a hard copy of the 2017 Will before him with which he could follow along. Galen argued that the facts in this case exceeded the limits of WESA s. 58 as the 2017 Will was never reviewed by Mr. Gibb. Galen further submitted that the 2017 Will is not a “record” as is usually described in WESA, as Mr. Gibb never actually saw the document. The Court did not accept that argument. Strictly speaking, actually seeing the document itself is not essential. Wills are read aloud to blind or illiterate will-makers, and, so long as they confirm its accuracy and sign before two witnesses, deemed valid.

Unsigned will given effect

Mr. Gibb’s 2017 Will was prepared by a lawyer, its contents confirmed in a phone call, with a date set for a mere three days later on which it would be executed. That Mr. Gibb only reviewed and approved the 2017 Will over the phone with his lawyer did not undermine his testamentary intention. The execution of the will did not occur as planned as Mr. Gibb was confident he was going to recover from his health challenges. He was optimistic, understandably as he was only 68, hence there was no urgency in his view for his lawyer to make a special trip to see him. Once he knew Mr. Simonett would be in Victoria for other reasons on November 17, Mr. Gibb readily agreed to meet and sign the will. In agreeing to meet with his lawyer on November 17 after reviewing the will by phone on November 14, Mr. Gibb showed his intention to execute the 2017 Will. There was no evidence he wavered in his intentions in the days after the phone call, nor was there any evidence that he expressed uncertainty or desire to consider the matter further before the planned execution on November 17. But for his death, there was nothing to suggest he would not have signed the 2017 Will as read to him on November 14. Also significant was that if the 2017 Will is not cured, Mr. Gibb’s intentions would be defeated and his estate would go, largely, to individuals he expressly did not wish to benefit from his estate. The Court ordered, pursuant to WESA s. 58, that the 2017 Will was effective, and ordered that Mr. Service and Galen’s costs be payable from the estate on a full indemnity basis.

Take home point on “curing” an unsigned will under WESA s. 58

It is the duty of the courts to give effect, if possible, to the intentions of a will-maker. The curative nature of WESA s. 58 is meant to prevent testamentary wishes being defeated due to “technicalities.” A determination of whether to exercise the court’s curative power with respect to otherwise invalid will is intensely fact-sensitive. Before a court can grant relief under s. 58 of WESA it must be satisfied that the testamentary document is authentic and that it represents the deceased person’s fixed and final testamentary intentions. A crucial part of establishing that the document in issue represents the deceased person’s testamentary intentions is to show that the deceased had testamentary capacity at the relevant time.

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