WESA – Scrap Paper Notes Not a Will

WESARe Lane 2015 BCSC 2162 held that none of  seven handwritten notes made between April 14, 2012 and January 9, 2015 represented the intention of the deceased to alter her Last Will and Testament dated July 12, 1994 and could not be cured under s 58 of WESA, the “curative provisions”.

The case is helpful in determining the boundaries of the curative provision of s 568 in that the judge sets out the various reasons why the scrap notes could e testamentary and then the reason why they may not be testamentary, and concludes the latter.

It would appear  that the deciding factor was likely the existing will which gave half the estate to her daughter.

The evidence available simply could not overcome the significant change in the distribution of the estate.

There was no correlation between the notes written on scraps of paper and the properly executed Will gifting property to the daughter.

There was no evidence to establish that the deceased had finally decided to effectively disinherit the daughter – she did not destroy or mark up her existing will, she did not reference the existing will in her notes, she was not estranged from the daughter, and she did not go to the lawyer to get a new will made even though she was advised to do so.

The Court is applying the 2 part test set out in Re Young 2015 BCSC 182 :

 

  1. Is the document authentic?
  2. Does it evidence the fixed and final testamentary intentions of the deceased?

 

Thankfully the Court is not simply “rubber stamping” applications to cure unwitnessed notes and convert them into a will.

 

” 29      Before granting an order that a document is fully effective as a will, or as an alteration to a will pursuant to s. 58(3) of WESA, the court must be satisfied that the document represents the testamentary intention of the deceased: Estate of Young, 2015 BCSC 182 at para. 19. As Dickson J. (as she then was) observed in Estate of Young at para. 17:

Section 58 of the WESA is a curative provision. It confers a discretion on the court to relieve against the consequences of non-compliance with testamentary formalities in a “record, document or writing or marking on a will or document”. In prescribed circumstances, s. 58 permits the court to address and cure issues of formal invalidity in such documents. It cannot, however, be used to uphold a will that is invalid for substantive reasons such as testamentary incapacity or undue influence.

30      Section 58 of WESA was first considered by this Court in Estate of Young. Because s. 58 is most similar to s. 23 of the Manitoba Wills Act, C.C.S.M. c. W150, Madam Justice Dickson reviewed the Manitoba authorities, including the leading case of George v. Daily, [1997] M.J. No. 51 (C.A.). In George, the Manitoba Court of Appeal overturned the decision of the chambers judge who had held that a letter written by the deceased’s accountant to the deceased’s solicitor containing proposed revisions to the deceased’s will should be admitted to probate. The accountant had prepared the letter after receiving instructions from the deceased to change his will to leave most of his estate to various charities rather than to his children. When the deceased later met with his solicitor and confirmed the alterations to the will contained in his accountant’s letter, the solicitor requested the deceased obtain a certificate from his doctor confirming that he had the capacity to execute the will. The deceased died two months later without having obtained the medical certificate. The solicitor had not spoken with the deceased in the interim, nor had he prepared a new will.

31      In George, the Court stated the following principles:

(a) The standard of proof on an application under the curative provision is proof on a balance of probabilities (para. 20).

(b) The greater the departure from the requirements of formal validity, the harder it may be for the court to be satisfied that the document represents the deceased’s testamentary intention (para. 19).

(c) The requirements for formal validity of a will serve several purposes or functions, including:

  1. an evidentiary function by providing the court with reliable and permanent evidence of testamentary intention and the terms of the will; and
  2. a cautionary function by impressing upon the testator the solemnity, finality, and importance of his actions in making his “last will and testament” (at paras. 21-26).

(d) The evidentiary and cautionary functions are particularly relevant to the determination of whether or not a writing or document embodies the testamentary intentions of a deceased (para. 22).

(e) Not every expression made by a person, whether orally in writing, concerning the disposition of his or her property on death embodies his or her testamentary intentions (para. 62).

(f) The court held at para. 65:

The term “testamentary intention” means much more than a person’s expression of how he would like his/her property to be disposed of after death. The essential quality of the term is that there must be a deliberate or fixed and final expression of intention as to the disposal of his/her property on death: Bennett; Molinary v. Winfrey (1960), [1961] S.C.R. 91; and Canada Permanent Trust Co. v. Bowman, [1962] S.C.R. 711.

[Emphasis added.]

32      In Estate of Young at para. 35, Madam Justice Dickson, after citing George, held that on an application under s. 58 of WESA:

… The key question is whether the document records a deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death. A deliberate or fixed and final intention is not the equivalent of an irrevocable intention, given that a will, by its nature, is revocable until the death of its maker. Rather, the intention must be fixed and final at the material time, which will vary depending on the circumstances.

33      The factors relevant to the determination of whether a document that does not comply with testamentary formalities embodies the deceased’s testamentary intention are context specific. They may include the presence of the deceased’s signature, the deceased’s handwriting, witness signatures, revocation of previous wills, funeral arrangements, specific bequests, and the title of the document: Estate of Young at para. 36.

34      In Estate of Young, the deceased left two documents on her dining table. The first was dated June 17, 2013, was signed on its first page by the deceased, and included a list of items of personal property for distribution to various beneficiaries. The deceased left an unsigned copy of this document with her neighbour, who she asked to assist with the distribution of the items listed.

35      The second document, dated October 15, 2013 referred to the earlier document and set out a plan for the distribution of items not described in the earlier list.

36      The court found that the June 17, 2013 document recorded a “deliberate expression of the deceased’s wishes as to the disposal of the listed property upon her death”. At paras. 38 to 40, Madam Justice Dickson took into account the following factors:

(a) the document contemplated distribution of the listed property to specific beneficiaries on the event of death and was expressed in language that conveyed an air of finality;

(b) the document was generally consistent with other provisions of the will;

(c) by signing the document the will-maker signalled her knowledge and approval of its contents;

(d) shortly before she died, Ms. Young left the signed document on her dining room table where it could be found by others; and

(e) Ms. Young provided a copy of the document to her neighbour when seeking her assistance to carry out her final wishes.

37      All of these factors satisfied the court that the document was both final and authentic.

38      Conversely, in finding that the October 15 document had no testamentary effect, the court noted that it was merely “an expression of Ms. Young’s non-binding wishes related to some of her earlier dispositions”. Further, the document was unsigned. Nor had the deceased provided a copy to her neighbour.

39      In Beck Estate (Re), 2015 BCSC 676, Master Young (as she then was) considered a handwritten document in letter form, which the deceased dated and signed. The court found that the words “Codicil to my Last Will” and instructions that the document was to be read out by her lawyer suggested a deliberate or fixed and final expression of intention regarding the disposal of the deceased’s property upon her death. The deceased had also given the document to her executor for safekeeping one week before her death, and had told him that she thought the unwitnessed Codicil was valid.

 

44      The factors that might support a finding that the notes represent the testamentary intention of the deceased are:

(a) the deceased used the formal language of “I, Elda Lane leave … to my son” in several of the notes;

(b) some of the notes are signed at their end by the deceased;

(c) the deceased told the petitioner she wanted him to have her house after she died and that she had left a note to that effect;

(d) six of the notes contemplate a distribution of the estate by which the petitioner would receive all of the residue of the estate. The October 21, 2012 note identifies the property to be left to the petitioner as including the deceased’s principal assets, her house and the Scotiabank account.

45      I have excluded the April 14, 2012 note. That note, written on the back of a Safeway receipt, states that the deceased is leaving her house to her son, and that she is leaving her son “in charge of my bank account … with Scotia Bank.” In my view, the latter statement is as consistent with an expression of a wish by the deceased that the petitioner manage her finances as it is with an intention to make a bequest. I find that the April 14, 2012 document is not a deliberate or fixed and final statement of the deceased’s testamentary intention.

 

46      The factors that weigh against a finding that one or more of the notes represent the deceased’s testamentary intentions are as follows:

(a) each of the notes is written on the back of a receipt, grocery list, calendar, or other scrap paper, suggesting impermanence and informality rather than a fixed and final intention;

(b) none of the notes were witnessed. They all lack one of the fundamental hallmarks of formal validity;

(c) there is no express revocation of the deceased’s Will. This case is distinguishable from Estate of Young where the document admitted to probate was generally consistent with the deceased’s will;

(d) none of the documents bear a title. In Beck Estate, unlike this case, the deceased described the document in issue as a codicil to her last will. She left instructions for the document to be read out by her lawyer. She also left a copy with her executor. Here, there is no evidence that the deceased either showed or provided copies of her notes to anyone else;

(e) the deceased appears to have made the December 15, 2014 and January 9, 2015 notes at times when she thought she might shortly die. By suggesting that the gift was contingent upon her imminent death these notes may not represent an expression of the deceased’s fixed and final testamentary intention;

(f) some of the documents are in the form of personal notes addressed to the petitioner, a further departure from the formal requirements of a testamentary document.

47      In the particular circumstances of this case, I attach little weight to the deceased’s apparent belief that her notes were effective to change her Will. None of the notes explicitly state an intention to revoke her gift of one-half of the residue of the estate to Ms. Alsop.

Conclusion

48      After weighing all of these factors, I find on the balance of probabilities that the notes, whether considered individually or collectively, do not represent a deliberate and final expression of the deceased’s testamentary intentions. In making that determination, I give particular weight to the absence of any witnesses, the fact that all of the notes were made on scrap paper, the absence of any express revocation of the Will or the gift of one-half of the residue to Ms. Alsop, the lack of any evidence the deceased had any rational basis for disinheriting Ms. Alsop, and indeed the lack of any evidence that the deceased ever turned her mind to how the wishes she expressed in the notes would affect her earlier testamentary dispositions.

49      Accordingly, I find that the notes do not have testamentary status and may not be “cured” under s. 58 of WESA.

 

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

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