A recent CBC article demonstrates the importance of having a testator regularly review, or at least consider, their current estate plan to ensure that it conforms to their testamentary intentions, and the potential pitfalls of failing to do so or of failing to seek legal advice.

Eleena Murray, of Vancouver, British Columbia, died leaving a Last Will and Testament dated sometime in 2003.  The Will provided cash legacies to various relatives, totaling approximately $440,000, and left the residue of Eleena’s estate to a charitable organization, the SPCA.

Although it is not clear, at the time the Will was drawn, it appears as if the residue of the Estate would have largely consisted of her interest in her house, situated in the Point Grey neighbourhood of Vancouver.  Presumably, although it is unclear, the total value of all of the cash legacies was likely close to the fair market value of the house, such that Eleena intended to divide her estate roughly equally between the legatees and the charity.

However, in the years since the Will was drawn, the real estate market in Vancouver saw massive growth, with property values rising significantly, and the value of the residue of Eleena’s estate along with them.  In 2017, perhaps recognizing what had become a considerable discrepancy between the values of the cash legacies and the value of the house, Eleena apparently drafted a handwritten note containing, among other instructions, an intention to limit the SPCA’s interest in her estate to a flat bequest of $100,000.

It is unclear whether the note was signed by Eleena or subscribed to by attesting witnesses (although two witnesses swore affidavits attesting to the fact that the note was prepared by Eleena).  Eleena died only months later, without having amended her Will to reflect her purported intentions by way of the note.  Although the value of the house, and therefore the residue of the Estate, increased significantly, Eleena never formally amended her estate plan.

Litigation has since ensued, with Eleena’s family members asserting that the handwritten note is a testamentary document that accurately represents her intentions.

Were this litigation taking place in Ontario, a court might find that the handwritten note would constitute a holograph will, assuming it was signed by Eleena.  A holograph will is a will that is made entirely in the handwriting of the testator and signed by them, without the need for attesting witnesses.

In British Columbia, the analysis is slightly more nuanced.  There is no equivalent provision under BC legislation that specifically recognizes the validity of holograph wills, as the Succession Law Reform Act does in Ontario.  That said, British Columbia’s Wills, Estates and Succession Act empowers a court to make an order that a record purporting to be a will if the court is satisfied that the document represents,

1. The testamentary intentions of a deceased person;
2. The intention of a deceased person to revoke, alter, or revive a will; or
3. The intention of a deceased person to revoke, alter, or revive a testamentary disposition in a document other than a will.

The court is equally empowered to make an order that a will that is not made in conformity with the applicable legislation is equally as effective as if it had been.

In the case at hand, the prevailing question will likely be whether the court is satisfied that the handwritten note accurately represents Eleena’s testamentary intentions.  If so, the subsequent issue to be considered is whether the balance of the Estate that is not dealt with pursuant to the note passes by way of an intestacy, but that is a topic for another day.

Thanks for reading.

Garrett Horrocks