A person may enter into a testamentary contract, whereby they agree to leave their estate to another person in exchange for some consideration, for example services that the other person had provided or would subsequently provide.  This creates a binding agreement, and the party no longer has the ability to change the named beneficiary in their estate plan without breaching the agreement.

These agreements can be difficult to prove.  Testamentary autonomy is “a deeply entrenched common law principle,” and this type of agreement deprives a person of their testamentary autonomy (albeit for consideration).

The B.C. Supreme Court recently considered the existence of a testamentary contract in Angelis v. Siermy 2022 BCSC 31.  In Angelis, the court considered whether a childless aunt was obligated to leave her estate to one of her nieces.  In 2002, the aunt executed estate documents that would leave most of her substantial estate to the niece (the plaintiff).  In 2011, the aunt executed a subsequent will changing her main beneficiary to a different niece.

The plaintiff claimed that she had an oral contract with her aunt, whereby her aunt promised to leave the bulk of her estate to the plaintiff in exchange for the plaintiff providing years of unpaid service to the aunt and her company.  She alleged that the changes to the estate plan in 2011 resulted in a breach of that agreement.

The Court observed that this was an unusual case because the will-maker was still alive and in a position to defend the litigation.  She denied the existence of any agreement to leave her estate to the plaintiff.

The plaintiff was the only person who claimed that the agreement existed.  There were no collateral witnesses to confirm her position.

The plaintiff relied upon three letters, allegedly written by the aunt, which allegedly explained the aunt’s reasons for her estate planning decisions.  The aunt admitted that she wrote the first letter (which does not mention any agreement), but denied drafting or signing the second and third letter.

The court found no evidence that supported the existence of a testamentary contract in this case.  Instead, the evidence suggested that no such agreement existed.

The court considered the three letters in great detail (including expert evidence on ink and handwriting analysis).  The court focused on the content of the letters, and concluded that the plaintiff forged the second and third letters.  The plaintiff’s claim in breach of contract was dismissed.

The plaintiff also brought a claim in unjust enrichment, in the event there was no contract.    However, unjust enrichment is an equitable remedy, and a party who seeks a equitable remedy must come to court with clean hands.  In this case, the plaintiff’s claim in unjust enrichment was barred as a result of her forgery of the two letters.  In the alternative, the plaintiff provided any services with donative intent, and further she was compensated for her services.