Authors: Ariel Lekas, Alandra Jessup, Sam Amelio, K.C.
COVID-19 has prevented many people from meeting in person. In a recent case heard by the Supreme Court of British Columbia, the pandemic prevented a woman from meeting with her lawyer to have her will executed before she died. But can such wills be validated?
In this case, the answer was yes. The Supreme Court of British Columbia has given effect to the now-deceased testatrix’s intentions when the onset of the COVID-19 pandemic prevented her from attending an appointment with her lawyer to execute a new will. This decision alters how Courts may treat wills left unsigned due to COVID-19 in British Columbia, and has the potential to affect the treatment of other non-compliant wills nationwide.
Decision History – Bishop Estate v Sheardown, 2021 BCSC 1571
In early 2020, Marilyn Bishop (the “Deceased”), gave her lawyer instructions to update her will. She reviewed the draft of her new will (the “2020 Will”) and made a few minor clarifications, but cancelled her signing appointment due to the COVID-19 pandemic and sadly passed away shortly thereafter. The Deceased’s previous will (the “2014 Will”) named her deceased husband as the sole beneficiary and Kelowna General Hospital Foundation as the alternate beneficiary. The unexecuted 2020 Will named the Deceased’s nephew and niece-in-law (the “Sheardowns”) as the executors and primary beneficiaries. The executor of the 2014 Will sought the Court’s direction as to whether the unexecuted 2020 Will represented the Deceased’s testamentary intention and should be ordered to be effective pursuant to section 58 of British Columbia’s Wills, Estates and Succession Act (WESA).
The Sheardowns took the position that the COVID-19 pandemic was the only reason why the Deceased did not execute the 2020 Will. Kelowna General Hospital Foundation took the position that the estate should be disposed of according to the 2014 Will since, in its view, the unexecuted 2020 Will was substantially invalid, could not be cured by the Court, and did not reflect the fixed and final intentions of the Deceased. The issues before the Court were whether the unexecuted 2020 Will was authentic and expressed the Deceased’s fixed and final testamentary intentions.
The parties did not contest the authenticity of the unexecuted 2020 Will. The Deceased’s lawyer established that they prepared the 2020 Will according to her instructions.
The Court adopted a two-step approach to determine whether the 2020 Will expressed the Deceased’s fixed and final intentions. The Court considered:
- whether the departure from the formal testamentary requirements made it impossible to establish testamentary intention; and
- whether the failure to execute the 2020 Will cancels any intention the Deceased may have had.
Though the unsigned and unwitnessed 2020 Will did not comply with formal testamentary requirements, the Court nonetheless found that it had the hallmarks of fixed and final testamentary intention. It bore the title of a will, was made by a lawyer retained for that purpose, revoked all prior wills, directed how the testatrix’s remains were to be dealt with, and named executors and beneficiaries. The four-month period between the appointment to execute the 2020 Will and the Deceased’s death did not negate the intention of the Deceased to distribute her estate according to the 2020 Will and did not constitute an undue delay.
For British Columbia
This decision has important implications in British Columbia for non-compliant wills that remain unsigned due to the COVID-19 pandemic. In British Columbia, the Courts have broad curing powers, including the ability to cure wills with missing signatures. Section 58 of the WESA permits Courts to order that a document be fully effective as though it had been made as the will of the deceased person as long as it represents their testamentary intention.
For Saskatchewan and Manitoba
The wills and estates legislation in Saskatchewan and Manitoba similarly provide Courts with broad powers to cure non-compliant wills. Similar to the WESA¸ Courts are permitted to order that a document be fully effective as though it had been properly executed as the will of the deceased if it is shown that the document embodies the testamentary intentions of the deceased. Accordingly, Saskatchewan or Manitoba Courts may be more inclined to apply the reasoning in Bishop Estate given the similar legislation and powers.
Alberta’s Wills and Succession Act (the “WSA”) is more stringent with respect to the rectification and validation of wills. In Alberta, Courts are only permitted to validate unexecuted wills if there is “clear and convincing evidence” that the deceased intended to sign the will but omitted to do so by pure mistake or inadvertence. In contrast to the legislation in British Columbia, Saskatchewan and Manitoba, where Courts are conferred a broad power to validate wills, the WSA distinguishes between unexecuted wills and otherwise non-compliant wills. For this reason, it is less likely that a will left unexecuted due to the COVID-19 pandemic could be validated in Alberta following the reasoning in Bishop Estate.
Canadian Courts strongly emphasize testamentary intentions and each province’s legislation, to differing extents, giving them the power to validate or rectify non-compliant wills if it means that the testator’s wishes can be honoured. However, these saving provisions are only used in extreme circumstances and can be difficult to invoke. While the COVID-19 pandemic may affect how Courts approach non-compliant will cases in the future, individuals should execute documents in a way that is safe, practical and in accordance with the formal requirements and COVID-19 restrictions in their respective province. Contact a member of our Estate Planning & Administration practice group to discuss the options available to execute your estate planning documents.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.