In March of last year, when practically everything around us came to a halt, Lawyers and Judges (and the rest of the legal system here) were not exempt.
Trials had to be halted. Preliminary applications (done in Chambers) were halted as well. Meeting with people also had to be stopped, unless by telephone. Many Lawyers worked remotely because offices were shut. It took some time before meetings took place via zoom. As a result, I suppose it was inevitable that a case involving an unsigned Will would come before the Court. Earlier this month, reasons were released in a case called Bishop Estate v. Sheardown. In this case, the shut down of so much of our regular activity caused an unsigned Will to come before the Court. Because of B.C. law today, our Courts were able to render a judgment on this Will. It is a particularly interesting case, not only because of the Pandemic but also because of the application of our law to it.
The deceased died in July, 2020. Her husband predeceased and they had no children.
In 2014, the deceased and her husband made Wills, naming each other as beneficiary and, when both were passed, the Kelowna General Hospital Foundation was sole beneficiary of the Estate.
The husband died in 2016. After, their nephew and his family moved close to where the deceased lived. They looked after the deceased as her health deteriorated. In early 2020, the deceased sought to make a new Will. She went in early March to the office of the same Lawyer who made the 2014 Wills of the deceased and her late husband. She instructed the Lawyer to make a new Will. The terms were changed, to exclude the Hospital Foundation, in favor of the Nephew. The deceased told her Lawyer that she did not have the same attachment to the Foundation as did her late husband. The words she used were “no charities at this time”.
An appointment was set for march 20th, 2020 to meet and sign the Will. But then, of course, the Pandemic broke and, as the deceased was by then in a care facility (due to declining health), she was unable to leave the facility except for medical appointments. The Will was never signed before the deceased died.
Section 58 of the Wills Estates and Succession Act governed this situation.
Under this section, the Court is authorized to declare a Will effective in a situation where it does not comply with all the formalities of signing normally required in a Will.
The Hospital Foundation argued, in part, that the Will was substantially invalid and the section does not allow a Court to declare that kind of document effective or valid. The Court disagreed and said that section 58 does not specify a minimal level of execution or other formal requirement for a testamentary document to be found fully effective.
What the Court had to ascertain is whether the document expressed the deceased’s fixed and final intentions.
The Court held that it could conclude the deceased’s intentions from the document. The document was, doubtless, a Will. It was in writing. It was prepared by a Lawyer on instruction. It was reviewed by the deceased and minor corrections were made. There was also no doubt about the deceased’s capacity when meeting with the Lawyer. There was no undue influence. Only the Pandemic prevented the signing.
The Will was held to be valid. The Nephew inherited the Estate.
The Pandemic has changed all our lives. We don’t know yet what our “new normal” (if I can put it that way) will look like. But it is not far fetched to expect that many things we used to do will be done differently in the coming months and years. Today, a Will can be signed using zoom. The people do not have to be physically in the same room at the same time.
This case was, in my opinion, under our present law, rightly decided. I am confident Dr. Henry would, if asked, felt that it was appropriate for the deceased not to have left her care facility at the time, in 2020.
One of the lessons to learn from this case is that Executors should, in looking through a deceased person’s records and documents (and computers, if applicable), keep everything. Any document can be testamentary in nature and so should be held. If there is doubt about any record or document, or computer record, ask a Lawyer but do not delete or discard !