In Gregoire v Cordani 2020 BCSC 276 held that a signed but unwitnessed suicide note was remedied as per the curative provisions of section 58 WESA, and held to be a valid will.
The essence of the suicide note was as follows:
This is my will. Please respect my wishes.
Claude Gregoire common-law husband gets my apartment and all its contents and HSBC bank account.
Michael Cordani brother get all the rest RRSP account at HSBC
Stephen and Adam get nothing
Nobody, no doctors, is to blame. Please be happy for me.
Social Insurance Number
The court reviewed the law under sections 58 of WESA being the curative provision that provides the court with discretion to order that a record that does not conform with section 37 WESA is fully effective as a will.
The court must be satisfied on the balance of probabilities, first, that the document is authentic, and second, that the document records. The deceased deliberate or fixed and final expression of intention as to disposal of his or her property on death.
The court referred to the leading case in British Columbia , re Hadley Estate 2017 BC CA 311, which amongst other things stated that after creating the document, a will maker may, by words or actions, manifest a fixed and final intention that expresses how his or her property is to be disposed of on death, and thus that it operates as a will. In other words, a document may require a testamentary character by subsequent and sufficient manifestation of the will maker’s intention.
The burden of proof that a noncompliant document embodies the deceased testamentary intentions is a balance of probabilities. A wide range of factors may be relevant to establishing their existence in a particular case.
Although context specific, these factors may include the presence of the deceased signature, the deceased’s handwriting, witness signatures, revocation of previous wills, funeral arrangements, specific bequests, and the title of the document.
Extrinsic evidence of testamentary intent is admissible on a section 58 inquiry, so long as it meets the ordinary rules of evidence.
The court concluded that there was no other will or testamentary document in existence.
A number of factors were considered by the court in reaching the conclusion the suicide note was a valid will, namely:
- The document is referred to as a will and states her intention that the note be treated as such;
- the note does not appoint an executor but specifically addresses the referred to two parties to please respect my wishes. The court held that this is a direction to those parties to act on her behalf;
- the note was in the deceased handwriting and signed by her;
- the note was not witnessed, but it does refer to her depression and appears to be written in contemplation of taking her own life. The court held that why the note was not witnessed and the lack of witnesses does not evince an intention that this was not to be treated as her will;
- the note was found in her locked car by the place near where her body was found, indicating an intention that it be found;
- the note was dated the same date that she went missing;
- the deceased made specific bequests of major assets of her estate;
- the note stated her social insurance number, bank account numbers and the address of her apartment;
- the language of the note con vase an air of finality;
- she left nothing to her two other brothers and mother, which was consistent with statements made to her common-law husband that she had decided to cut these people from her life;
- the common-law husband stated that he and the deceased are discussed, leaving their respective estates to each other, but there is no discussion of what portion of the estate, so this is not inconsistent with the note
- there are no allegations of testamentary incapacity or undue influence.