Our skilled Vancouver Will estate litigation lawyers just reviewed a will and estate litigation dispute case just released by Madam Justice MacNaughton in Henderson v Myler.
In today’s blog by the founder of our team of Vancouver Will Estate Litigation Lawyers, Lorne MacLean, QC he discusses why it is important to ensure Wills are regularly and properly updated to avoid stress and confusion for loved ones. Our firm has offices across BC with locations in downtown Vancouver, Surrey, Victoria, kelowna, Richmond and Fort St John and Dawson Creek.
The recent Wills and estate litigation dispute pitted relatives of a deceased 99 year old woman against the BC Society for prevention of cruelty to animals (“SPCA”) and involved $1. 5 million dollars the SPCA received under the Will while the relatives of the deceased argued the SPCA should get only $100,000 and they should get a greater share of the estate. The relatives claimed the Will was made at a time when the deceased did not understand the “residue clause” (this is the balance of estate left over after specific requests are made) to make a proper Will or alternatively that she altered the Will by an unsigned unwitnessed note found together with the Will in a locked box in her residence that reduced the SPCA share from the residue to a specific sum of $100,000.
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The Will was properly witnessed and signed in 2013 and the disputed note was created in 2017. The handwritten note purported to change some bequests and notably allocate only $100,000 of the estate to the SPCA. The estate was comprised of sale proceeds for a Kitsilano home which was worth about $ 1 million in 2013 when the Will was signed but which greatly increased in value by the death of the Will maker.
Although he Will was properly executed the relatives argued that there were suspicious circumstances such that the Will should not be followed. Madam Justice MacNaughton restated the law on suspicious circumstances as it relates to Will and Estate litigation dispute cases:
 The legal burden of establishing the validity of a will is on its propounder. A rebuttable presumption aids the propounder in this task. If there is proof the will was duly executed with the requisite formalities, after having been read over to or by a testator who appeared to understand it, it is generally presumed that the testator knew and approved of the contents and had the necessary testamentary capacity: Vout v. Hay, 1995 CanLII 105 (SCC),  2 S.C.R. 876 at para. 26.
 The presumption that the testator possessed the requisite knowledge, approval and capacity to execute a will in accordance with statutory formalities is rebutted when there is evidence of well-grounded suspicions, relating to one or more of the following circumstances, set out in Vout at para. 25:
- Suspicious circumstances surrounding the preparation of the will;
- Suspicious circumstances that call into question the capacity of the testator; or
- Suspicious circumstances tending to show that the free will of the testator was overborne by acts of coercion or fraud.
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The Judge found the lawyer who prepared the Will to be credible on the creation and execution of the Will and her notes of the value of the estate confirmed she had gone over it with the deceased Will maker such the the Will maker knew the value of her estate. The court held:
 Testators are not required to be accountants, or to have an accountant’s knowledge and understanding of their estate: indeed, if such a meticulous standard were required, “many testators would be unable to meet it.” An approximate value of one’s estate is required, and a testator is not required to know its exact make-up. After reviewing the common law in BC, the Court in Laszlo v. Lawton, 2013 BCSC 305, summarized what was necessary as follows:
 The principles to be taken from the authorities are that testators are not expected to know the exact composition of their estate assets and their value with the metronomic precision of an accountant. An appreciation of the general nature of the estate assets and an understanding of their extent, meaning their approximate value or the approximate value of the estate at large, expressed either in terms of dollars or quantitatively (eg. “a lot of money” or “a substantial fortune”), will suffice.
The Court also held that:
 I found Ms. Deprez’ evidence to be credible. She was doing her best to recall what had happened more than eight years before. I accept that she followed her usual practice with respect to Ms. Murray. Based on my assessment of the surrounding facts and Ms. Deprez’ evidence, Ms. Murray knew the size of her estate in January 2013, knew that the specific gifts to her extended family amounted to $440,000, and knew and approved of the “rest” of her approximately $1.2 million estate being gifted to the BC SPCA.
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The note that the relatives relied upon was not a formal Will, it was unsigned, unwitnessed and did not deal with a substantial residue of the estate. It did mention a $100,000 contribution to the SPCA instead of the balance of the residue. This meant there was a difference of $1.5 milion less the new indication of $100,000 to the SPCA = $1.4 million to be fought over in Court.
[The parties agree the Note did not meet the formal requirements of s. 37 of WESA. It was not signed at its end by Ms. Murray, and not witnessed by any witnesses. As such it is not a valid testamentary instrument.
The New WESA section 58 allows a judge under specific circumstances to fix a document that is not a valid Will. In this case the Court held it could not accept this note as a valid yet defective Will because it was a separate note, a note not referred to in the 2013 Will and because it did not truly represent the testamentary intentions of the deceased woman. The Judge decided that there was no evidence that Ms. Murray appreciated the effect of the Note on the disposition of her estate, particularly the effect of not dealing with the remaining residue:
 Section 58 is a curative provision, conferring broad discretion on the court to relieve against the consequences of non-compliance with strict testamentary formalities otherwise required by WESA in order to find that a record, document or writing, or a marking on a will or document, represents the testamentary intentions of the deceased. In Hadley Estate (Re), 2017 BCCA 311 at para. 34, the Court of Appeal describes s. 58 as “remedial in nature”.
 The focus is on whether the document represents the testamentary intentions of the deceased.”
The Court reviewed all the deficiencies in the note compared to that of a valid and properly executed and witnessed Will and found section 58 could not be used to turn the note into a “Will”
In summary the SPCA received the residue of roughly $1,500,000. Because the Judge decided:
- Ms. Murray was aware of and approved of the residual bequest to the BC SPCA under the 2013 Will.
- The Note does not reflect Ms. Murray’s fixed and final intention to change the 2013 Will and is not fully effective as a codicil or alteration to the 2013 Will.
- Ms. Murray had the requisite testamentary capacity in May 2017 to execute the Note as a codicil to the 2013 Will.
- Finally, Ms. Murray did not know, understand, and approve of the amendments to the 2013 Will made by the Note.
If you have a Wills and estate litigation dispute contact our experienced Vancouver Will Estate litigation lawyers today across Bc and in Alberta and Toronto toll free at 1 877 602 9900