Copy of Will Probated

Under certain circumstances a copy of a will rather than the original, may be admitted to probate as the last valid will of the deceased.

The competing claimants will typically argue that there is a presumption of revocation when the original will cannot be produced.

There is more information on this topic under my blog heading of lost wills.

In short reasons for judgement, Canada Trust v MacMillan 2016 BCSC 1909 sets out a situation where the court was satisfied by evidence that the will maker executed a last will that had become lost due to changes in the law firms that held the will. Evidence was also led that she was mentally capable at the time the will was signed, as it was argues she had suffered from mental illness for much of her life.

Canada Trust v MacMillan 2016 BCSC 1909

APPLICATION by bank for pronouncement of force and validity of last will of deceased in solemn form.

Gray J., In Chambers:

1 I am prepared to make the order requested. I will just give some very brief reasons for judgment.

2 Canada Trust is seeking a series of orders. The most important is a pronouncement for the force and validity of the last will of Joan Margaret MacMillan (“Ms. MacMillan”) dated November 5, 2002, in solemn form.

3 Ms. MacMillan passed away in March 2014 at the age of about 81 years. She had an estate which is presently worth a little bit more than two million dollars.

4 There were really three areas of concern that were addressed. The first is that the original signed will is not available. However, there is evidence that Mr. Argue was the lawyer who prepared the will. He was a lawyer with the law firm Owen Bird at the time he did the initial work on the will, and a few days later he started working at the law firm Campney & Murphy, and he was a lawyer with that firm when the will was executed.

5 A wills notice was filed saying that the will was kept at the law firm Campney & Murphy, but that law firm ceased operations, and the will was not found in the vault.

6 Two copies of the will were found, one in the deceased’s personal documents, and the other with Canada Trust, which was involved in referring Ms. MacMillan to Mr. Argue for preparation of the will. There was also an email from Mr. Argue to the Canada Trust officer who had been involved, saying that the will had been executed.

7 On the basis of all this, I am satisfied that the will was executed in compliance with the Wills Act formalities, even though we do not have the original will itself. We have the copy. It is appropriate with the correction in the name of the cousin, to Dorothy C. Anderson (“Ms. Anderson”). The name originally provided was Dorothy T. Anderson, but that name was incorrect.

8 The will itself provided that the residue would be distributed equally between Ms. Anderson and James V. Bennett, or to the survivor. In fact, Ms. Anderson predeceased the will maker. So pursuant to the will, it would be Mr. Bennett who would receive the entire residue of the estate.

9 Mr. Bennett was not a relative of the will maker. He met her in connection with doing some private investigation work for her. After that, he spent some time assisting her with chores, assisting her around the home, and having some social interaction with her such as lunches and teas and so on.

10 There was a concern about the will maker’s capacity to make the will. Ms. MacMillan had a history of mental illness. She suffered bipolar disorder, with episodes of depression and episodes of manic behaviour. She had some hospitalizations over the course of her lifetime. However, at the time of giving instructions and the execution of the will, she satisfied Ms. Taylor of Canada Trust and the lawyer, Mr. Argue, that she had testamentary capacity. She knew the extent of her estate. She knew that she had no living parents or siblings or children.

11 There is also the evidence of Dr. Sloan, a geriatric physician, and Dr. Hurwitz, a neurologist and psychiatrist, based on their review of medical records, all suggesting that the will maker had testamentary capacity. I am satisfied that Ms. MacMillan had the necessary capacity to execute the will at the time she did so.

12 A concern was also raised about undue influence. I have read Mr. Bennett’s affidavit, and I have not seen any evidence that suggests that there was undue influence.

13 Having considered all these things, I will make the orders sought and I am happy to initial the approved form of order.