For those animal lovers amongst us, the recent decision of the Supreme Court of British Columbia in Henderson v Myler may have caught your eye.

Setting out a plan in your estate for beloved pets is not uncommon and a reasonable step to take for your furry friend. At times, in the midst of the enthusiasm to ensure pets are looked after, one can get carried away, and the courts may step in to impose a modicum of reasonableness.

In the present case, the testatrix, Eleena Murray (“Mrs. Murray”), died in late 2017, leaving a will dated January, 2013 (the “2013 Will”), providing a few named relatives small specific bequests, and the residue in its entirety, totalling approximately $1.8 million, to the BC Society for the Prevention of Cruelty to Animals (the “SPCA”).

The dispute arose from an unsigned note from 2017 (the “Note”), found in Mrs. Murray’s safety deposit box. The Note, if valid, indicated that she intended to increase the amount of some of the specific bequests, delete others, and reduce the gift to the SPCA to the specific amount of $100,000.00. However, following Mrs. Murray’s death, her home was sold, and the value of the estate was found to be significantly larger than initially thought. If the estate was distributed under the terms of the Note, there would be $1.4 million passing under a partial intestacy.

In her decision, Madam Justice MacNaughton stated: “Ms. Murray had no immediate family. It is entirely possible that she chose to benefit a charity that reflected her love of animals as opposed to extended family members … The question is what Ms. Murray subjectively intended, not what an average person would choose to do with their estate.”

While the size of the gift to the SPCA in the 2013 Will was unusually generous, the Court emphasized that a divergence from “the average testamentary gift” was not a determinative factor. The Court looked to Mrs. Murray’s personality and lifestyle, and found that, while the gift to the SPCA in the 2013 Will was unusual in a normative sense, it was consistent with her character and actions in life.

Further, considering the inconsistencies in the handwriting of the Note, and the lack of a residuary clause, the Court found that the Note was not effective as a codicil or alteration to the 2013 Will.

In Ontario, handwritten wills and alterations are governed by the Succession Law Reform Act, R.S.O. 1990, c. S.26 (the “SLRA”), and more specifically for the latter, section 18. The requirements can seem relatively straightforward – the document must be signed by the testator and be entirely in their handwriting. However, as witnesses are not required, the circumstances around the execution can often be uncertain, opening the door to potential litigation.

If you are planning on writing a holographic will, and have doubts or questions, it may be wise to consult with a lawyer.

Thank you for reading and have a great day!

Suzana Popovic-Montag & Raphael Leitz