It is not uncommon for people to make changes to their estate plan in the final stages of their life, whether they are ill or elderly. Sometimes there is urgency – death may be imminent. On occasion, someone may start to make these changes, but may die before the changes have been finalized. What happens when it is known that someone wants to make certain changes to their estate plan, starts the process to make those changes, but does not complete the changes (for example by taking the final step of signing a new will)?
This was the case in the recent B.C. Supreme Court decision of Bishop Estate v. Sheardown 2021 BCSC 1571. In Bishop Estate, the deceased had given instructions to a lawyer to prepare her will, she reviewed the draft will, and she made a few minor clarifications. All that remained was to have the will signed and witnessed. Unfortunately, as a result of the COVID-19 pandemic, the deceased cancelled her appointment with her lawyer to execute her new will. She then died without ever signing her new will.
The deceased had a previous will, which named her now-deceased husband as beneficiary, or in the alternative the Kelowna General Hospital Foundation. Under the new, unsigned will, the primary beneficiaries were the deceased’s nephew and niece-in-law.
A will must meet certain requirements to be valid, including the requirement that the will be in writing, signed by the will-maker in the presence of at least two witnesses.
However, in B.C. a court may cure deficiencies in an otherwise invalid will, and order it to be effective. It must be established that the invalid document is (1) authentic, and (2) represents the deceased’s deliberate or fixed and final intentions regarding the disposal of her property upon death. This is a fact specific inquiry. I have previously discussed other cases that apply the test here.
In Bishop Estate, the Court considered the background as to why the the deceased was making changes to her estate plan in 2020. Since the prior will was made in 2014, the deceased’s husband had died, and her nephew and his wife (the new beneficiaries) had moved to Kamloops and had become a regular part of her life. The deceased gave detailed and specific instructions to her lawyer that she wanted to name her nephew and his wife as beneficiaries and remove the Kelowna General Hospital Foundation.
The Court concluded that the unsigned will represented the deceased’s fixed and final intentions. The Deceased cancelled her appointment with her lawyer to sign her will because she could not leave her care facility and attend at the lawyer’s office in person as a result of the pandemic. The Hospital Foundation argued that the deceased could have signed her will remotely, which will-makers were allowed to do as a result of the COVID-19 pandemic. They argued that the deceased did not proceed with this option because she may have changed her mind about making a new will. The Court did not accept this argument. There was no evidence that the deceased was aware of this option, and the failure to execute the will remotely did not undermine her new testamentary intentions.
The Court ordered that the unsigned will was fully effective and determined how the deceased’s estate would be distributed.