Estates & Wills & Trusts

Decision shows value of B.C.'s new wills law

By AdvocateDaily.com Staff

A recent ruling highlights the value of B.C.’s Wills, Estates and Succession Law Act (WESA), Kamloops trusts and estates lawyer Matthew Ford tells AdvocateDaily.com.

The judge’s decision saw an unofficial second “will” by a deceased woman from Golden, B.C., enforced as a codicil to her original will even though the document went unwitnessed.

Ford, a partner with Cates Ford Epp LLP, says the ruling would not have been possible before the passage of the WESA in 2014, which completely revamped the province’s approach to estates, allowing courts to better reflect testator’s intentions.

“The new law gives courts the authority to provide effect to wills, even if they don’t comply with all of the formal requirements,” he says. “The old law, which did not contain these curative provisions, was extremely outdated, and judgments like this are kind of like seeing the intent of the new legislation come to fruition.

“There’s no good reason for something that was clearly the intent of a testator to be disregarded just because it doesn’t comply with the technical requirements for a will. Unless you’re in the business or you go to a lawyer, nobody knows any of that stuff,” adds Ford who was not involved in the case and comments generally.

The woman in the case died in March 2017, leaving behind a will from 2001, which was found with a second unwitnessed document signed by the deceased in 2014. Both named the same family member as executrix of the estate.

After hearing evidence from a number of witnesses who knew the deceased, the judge concluded that the second document from 2014 did not meet the requirements of a will, but that it was written by her without “input or influence from anyone other than the deceased.”

“After consideration of all of the law referenced earlier in this decision, the various fact patterns in those decisions and the evidence that the deceased did not revoke the previous will and did not dispose of all of her assets in the 2014 document, I conclude … that what is referred to there as the 'Second Will,' which I refer to as the 2014 document, is a codicil to the June 8, 2001 will,” the judge added. “Any property not disposed of by the 2014 document, in other words the residue, is to be divided in accordance with the June 8, 2001 will.”

Ford says the decision is effectively an implementation of the traditional “armchair rule,” which allows judges to put themselves in the position of the testator to determine their intentions with the benefit of extrinsic evidence about their surrounding circumstances.

“Where the will is ambiguous or unclear about what should happen, the armchair rule kicks in,” he explains. “In my mind, the evidence was quite compelling that in fact, the second will was a codicil to the first.”

Ford says he’s pleased that B.C., like other jurisdictions, including Manitoba, has loosened its approach to technical deficiencies in wills and, as cases mount up, endorses the more flexible approach to testamentary documents. He says he’s curious to see how far a testator can depart from the formalities of a properly drafted will before a judge will refuse to validate it.

“I think there’s room to go much further than we saw according to these facts,” he says. “You hear about people scribbling down their thoughts in a moment when it becomes clear death is imminent, and the new rules may well allow for documents to be admitted that bear almost no resemblance to a formal will.”

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