Will – Page 3 – Doug Carroll

Writing a separate document to change or add to a Will

At issue

For many people, the execution of a Will is a solemn and rare occasion, with the document promptly packed away in some safe location to await its eventual application.

Others may have a more dynamic view of Will execution, expecting and even planning periodic or frequent additions or amendments. Those in a terminal medical condition may at times become especially active in reviewing their estate intentions.

When actions are taken with the benefit of professional guidance, it is highly unlikely that the authenticity or interpretation of such documents will come into question. However, when a person acts without involvement of a professional – and perhaps with no-one else involved at all – uncertainty can arise.

While codicils are accepted in all provinces, writings that fall short of that are less dependable. Ontario generally requires formal execution to give testamentary effect, while most of the other provinces explicitly empower courts to review and rule on documents that do not meet the formalities required for Wills.

Use of a codicil

Whereas a newly executed Will revokes all prior Wills (absent a clear statement to the contrary within it), a codicil adds to or amends the prior Will but otherwise leaves it in force. The Codicil will make explicit reference to the original Will, and in terms of process the execution requirements are exactly the same as applies to Wills.

British Columbia Wills, Estates and Succession Act, s.58

With WESA coming into force in 2014, BC moved away from its former ‘strict compliance’ requirements for creating, altering, or revoking a will.

Section 58 is what is commonly called a curative provision. It allows a court the discretion to accept or ‘cure’ a document or writing as a valid testamentary statement despite that it does not meet formal execution requirements.

Estate of Young, 2015 BCSC 182

Sharone Young was 69 years old, living alone in North Vancouver. She had been in declining health for a number of years, dealing with cancer and the aftermath of a stroke. She died in her home on July 10, 2014.

Ms. Young had a validly executed Will from 2009 in which she named Canada Trust as her executor. After Ms. Young’s death, two documents were found on her dining room table: a signed document dated June 17, 2013 and an unsigned document dated October 15, 2013. Both documents addressed the gift or disposal of furniture and personal effects to certain people, with the October document being more general and adding some priority of choice among some of those people.

Evidence was also received that Ms. Young had lunch with her neighbour on June 17, 2013, and provided to her a copy of the document of that date.

The judge outlined the legal framework for analysis, which of course centered on the application of WESA s. 58. With no case law yet in BC, she considered the similarly worded Manitoba provisions, though even there most of the case law pre-dated the most recent amendments. Still, she summarized from those cases the two principle issues to address:

Is the document authentic?, and
Does is reflect testamentary intention?

With respect to the June document, the judge viewed the signature as Ms. Young’s conscious signal of her knowledge and approval of its contents. That was supported by having shared an exact copy with the neighbour and conspicuously leaving the original on the dining room table where it would be easily found. All this led to the conclusion that it was both authentic and expressed her testamentary intentions.

The judge was not as persuaded with the October document. As mentioned, it was unsigned, was never shared or mentioned to anyone so far as the evidence showed, and appears to have been no more than a letter expressing non-binding wishes.

Practice points

Per my usual comment, the best route to certainty is for a person as testator to follow formal processes, generally with the assistance of a capable professional.
At a minimum, an offered document will be questioned as to its authenticity and whether it shows testamentary intention.
To repeat, Ontario has a more formalistic regime, while most of the other provinces allow greater court discretion. Still, there remains a range of approaches even at that discretionary end. An executor should obtain legal advice specific to the deceased’s province to be certain whether a particular document may affect the estate.

Burning a Will requires intent to result in revocation

At issue

There are a number of ways that a Will may be revoked. Although the requirements vary somewhat by province, the avenues include execution of a new Will, making a written declaration of revocation, entering into marriage (in some provinces), and destruction of a current Will.

In this last respect, the mere act of destruction is not sufficient on its own to achieve the revocation. The destructive act must be carried out by the testator (or by the testator’s direction) with the intent of revoking the contents. While proof of destruction may often be self-evident, proof of intent – or lack thereof – is a bit more challenging.

Sigurdson v. Sigurdson, [1935] 4 D.L.R. 529 (S.C.C.).

Where a Will is last known to be in the possession of the testator but cannot be found after the person’s death, there is a rebuttable presumption that the Will has been destroyed with the intention of revoking it.

Where destruction itself is not in issue, the determination hinges on being able to show clear and convincing evidence on a balance of probabilities that there was no intention to revoke.

Wills Act, RSNB 1973, c W-9

An example of the type of phrasing dealing with destruction appears in the New Brunswick legislation:

15. A will or part of a will is revoked only by
…
(d) burning, tearing or otherwise destroying it by the testator or by some person
in his presence and by his direction with the intention of revoking it.

Barry et al v. Estabrooks Estate et al, 2014 NBQB 264

The sole issue in this case was whether Jarvis Estabrooks, a widower in his 80s, had the requisite intention to revoke when he burned his Will. If so, there would be an intestate distribution of $950,000 among his five surviving daughters. On the other hand, if the Will was upheld, there were some modest provisions for some of his daughters (there having been long estrangements and degrees of acrimony), with the bulk of the estate directed to his two nieces, Ruth and Roberta.

Mr. Estabrooks’ had invited his niece Ruth to be a live-in caregiver for him and his wife in 2001. Mrs. Estabrooks died shortly thereafter, and Ruth remained to assist him, right up to his death in 2012.

Sometime in late 2009 or early 2010, Mr. Estabrooks had attended at his bank and returned home with the contents of his safety deposit box. One day in April 2010 Mr. Estabrooks showed Ruth that he had separated the papers into two piles, one to be kept and one to be burned, following which she took her dog for a walk. When she returned, Mr. Estabrooks advised, “I must have burned the wrong pile.” He told her that his Will was in the burned pile but that his lawyer had another one, his apparent understanding being that an original and a copy were the same.

The evidence of the erroneous burning was supported by the testimony of a close friend to whom Mr. Estabrooks had shared the incident, repeating his assertion that he had “burnt the wrong pile.”

The judge remarked that Mr. Estabrooks enjoyed a close and warm relationship with his nieces, juxtaposed with disputes, ruptures and some permanent fall-outs he had experienced with his daughters. Past Wills were generally consistent in limiting or excluding the daughters, while benefiting the nieces, especially Ruth. Finally, the evidence showed that Mr. Estabrooks appreciated the importance and significance of a Will, and the implications of an intestacy.

The proponents of the Will had met the burden to rebut the presumption that there was any intention to revoke the Will, despite its destruction.

Practice points

A finding of revocation requires that a physical act be carried out to destroy the Will, combined with the intention to revoke. Either element on its own will not suffice to achieve the revocation.
If intention is proven such that the Will is revoked, the result is an intestacy. A past Will is not revived by the revocation of the subject Will.
Just as testamentary capacity is required in order for a finding of a duly executed Will, a person must be found to have testamentary capacity in order to revoke one.

Holographic Wills

At issue

The purpose of a Will is to dispose of one’s property at death.

All provinces have rules governing the formality of Will execution. Within such rules, witnesses serve the function of providing independent confirmation of the validity of the execution process. That said, a witness may not be necessary in all cases.

A holographic Will does not require any witness. At a minimum, such a document must be entirely in a person’s handwriting and be signed. Some provinces require a date, while other provinces do not. As well, a province may limit holograph Wills to specific circumstances or individuals, for example only for those in military service.

Regardless which form the document takes, it must be clear it is intended to function as a Will in disposing of property at death.

Estate of Cecil George Harris, d. June 8, 1948

This is the classic case that students learn about in their first Wills course at law school.

Cecil George Harris was a farmer in Rosetown, Saskatchewan who became pinned under his tractor. Alone and realizing the severity of his injuries, he used his pocket knife to scrape some words into the painted fender: “In case I die in this mess, I leave all to the wife. Cecil Geo Harris.”

Though he was found alive, Mr. Harris succumbed to his injuries in hospital. Days later when a friend towed the tractor back to the barn, he noticed the inscription and removed the bumper. It was offered into court as a holographic Will, and eventually accepted as valid.

The bumper and pocket knife remained ‘on file’ in the local Courthouse for almost 50 years, and are now on display at the University of Saskatchewan Law Library.

Popowich Estate, 2012 ABQB 665

This is a recent and sad case where a court was called upon to determine whether a suicide note constituted a holographic Will.

The deceased woman SLP had been diagnosed with a bipolar condition in her adult life, and subsequently suffered from anxiety, fear, depression and overall sadness. She was married, and had executed a formal Will in late 2009 dividing her estate equally between her husband and her mother. In July 2010, SLP had been missing for a couple of days before being found deceased. Police determined that she had committed suicide.

A 9-page handwritten letter was found with the body. Addressed to her mother, SLP expressed how she felt “stuck in a circle of pain”, but otherwise showed her continuing affection for both her mother and husband. In it, she also wrote,“Take my money and do things for yourself,” which the mother argued was a testamentary statement.

In court, the letter was found to have indeed met all the technical requirements for being a valid Will, including that SLP had testamentary capacity. However, the judge ruled that there was no indication of an actual or implied revocation of the formal Will. Rather, SLP had left her mother the “gift of trying to provide comfort in an excruciatingly painful situation.”

Practice points

In urgent situations, a holographic Will may be the only way to record one’s testamentary wishes. In less pressing circumstances, the process of preparing a formal Will allows for a more considered, comprehensive review of one’s affairs.
The requirements for execution of holographic Wills vary from province to province. As well, even if a document is validly executed in the current province, it may not be enforced as expected if the testator lives in a different province at death.
Disappointed beneficiaries may be more inclined to challenge a holographic Will, as compared to one prepared by a lawyer. A competent professional can advise on content and oversee execution, so that the testator’s wishes are correctly reflected in the document and in the ultimate result.