A recent decision of the British Columbia Supreme Court is a good reminder that Wills should be regularly reviewed by their makers to be sure they reflect his or her current wishes; and if not, a new Will or codicil should be prepared and executed as quickly as possible.
In a decision handed down last week, Justice MacNaughton held that a Vancouver woman’s estate had to be distributed pursuant to her 2013 Will, and not according to a handwritten note she made at some later date and left with the Will in a lockbox in her home.
The 2013 Will left specific gifts to the woman’s extended family and then left the residue* of her estate to the BC SPCA. Had the handwritten note been preferred, the BC SPCA would have received just $100,000 and the family would have received the residue of the estate.
Firstly, Justice MacNaughton held that the note did not meet the formal requirements for a Will. She then had the power to recognize it as a Will, despite its non-compliance, under a curative provision in the Wills, Estates and Succession Act. She declined to do so because she concluded the note did not demonstrate a fixed and final intention of the woman to change her 2013 Will.
Of importance in this decision were the following facts:
- The woman had demonstrated a pattern of obtaining advice from a legal professional concerning her estate planning, so she knew what a formal Will was and how one had to be executed.
- The note didn’t deal with the residue of the estate; the woman’s extended family would have received it under the rules of intestacy**. This was in conflict with the fact that specific gifts to some of those family members were crossed out in the note, indicating that the woman didn’t want them to benefit from her estate.
If your Will needs revision, contact one of our Wills & Estates lawyers.
The case can be read in its entirety here on the court’s website.
*This means whatever is left over after the estate has paid out all specific gifts, taxes, bills, expenses.
**These are the legal rules which apply when someone dies without a Will.