Is a Draft Will Legal?

Common questions that people have in British Columbia estate law include: “Is a draft will legal” or “binding” or “valid”? This article attempts to give some guidance on how to answer those questions.

In British Columbia, for a will to be valid, it must meet the requirements found in Section 37 of the Wills, Estates and Succession Act, SBC 2009 c. 13 which states:

How to make a valid will

37  (1) To be valid, a will must be (a) in writing, (b) signed at its end by the will-maker, or the signature at the end must be acknowledged by the will-maker as his or hers, in the presence of 2 or more witnesses present at the same time, and (c) signed by 2 or more of the witnesses in the presence of the will-maker.

Therefore, for a will to be valid under WESA, it must be,

1. In writing;
2. Signed by the will-maker at its; and
3. Be signed by at least two witnesses who are 19 years of age or older in the presence of the will-maker.

The general rule is that a witness cannot be someone who receives a gift under the will or the gift may be void.

Presumptively under WESA, a draft will is not valid because it will not have been signed by the will-maker because it is still in draft form.

Curative Provision under WESA

A new provision to BC under WESA allows the court to “cure” formal deficiencies in a testamentary document in some cases. Section 58 states as follows:

Court order curing deficiencies

58 (1) In this section, “record” includes data that (a) is recorded or stored electronically, (b) can be read by a person, and (c) is capable of reproduction in a visible form.

(2) On application, the court may make an order under subsection (3) if the court determines that a record, document or writing or marking on a will or document represents (a) the testamentary intentions of a deceased person, (b) the intention of a deceased person to revoke, alter or revive a will or testamentary disposition of the deceased person, or (c) the intention of a deceased person to revoke, alter or revive a testamentary disposition contained in a document other than a will.

(3) Even though the making, revocation, alteration or revival of a will does not comply with this Act, the court may, as the circumstances require, order that a record or document or writing or marking on a will or document be fully effective as though it had been made (a) as the will or part of the will of the deceased person, (b) as a revocation, alteration or revival of a will of the deceased person, or (c) as the testamentary intention of the deceased person.

(4) If an alteration to a will makes a word or provision illegible and the court is satisfied that the alteration was not made in accordance with this Act, the court may reinstate the original word or provision if there is evidence to establish what the original word or provision was.

This section and its application is 100% new to BC under WESA, although Manitoba has had a similar provision for some years. As a result, the court looks to Manitoba case law to determine when the curative provision may be used on a draft will.

The test has been re-stated by the BC Supreme Court (specifically Master MacNaughton in the Herod Estate case, below) as:

[20] To make an order under s. 58, the court must be satisfied that the record or document in question represents the testamentary intention of the deceased person.  In the handful of cases which have been decided under s. 58 of WESA since its enactment, certain principles have emerged.  Those principles have, in part, been taken from Manitoba cases as the applicable legislation in that province contains a similar curative provision.

[21] Applying the Manitoba Court of Appeal decision in George v. Daily (1997), 115 Man. R. (2d) 27 (C.A.), this court has interpreted s. 58 to require that the record or document under consideration must be a deliberate or fixed and final expression of the deceased’s intention as to the disposal of property upon his or her death: see  Estate of Young, 2015 BCSC 182; Beck Estate (Re), 2015 BCSC 676; Yaremkewich Estate(Re), 2015 BCSC 1124; and Lane Estate, 2015 BCSC 2162.

[22] The factors relevant to the determination of whether a document, which does not comply with the testamentary formalities of s. 37 of WESA, embodies the deceased’s testamentary intention are both context and fact specific.  The burden of proof is on a balance of probabilities.

Herod Estate

Recently, the newly elevated Madam Justice MacNaughton heard Herod Estate (Re), 2017 BCSC 318, a case involving a deceased who had given instructions to his lawyer to draw up a new draft will in 2015, but did not sign it before he passed away. The deceased already had a will drafted and signed in 2014 which was being held by the same lawyer. Justice MacNaughton was  asked to decide whether the 2015 will was valid using the curative provision under section 58 of WESA or whether the deceased’s estate ought to be distributed according to the 2014 will.

The deceased’s estate was worth approximately $158,000. The 2014 will provided that the deceased’s personal and household effects would be distributed first to his friend Diane Curet and second to his friend Walter Tangonan. The 2014 will then divides the residue of his estate into 100 shares to be divided as follows: 30 to his friend David Cater to be held on a trust, 15 to Mr. Tangonan, 10 to his friend Sheldon Skryzlo, 35 to his cousin Linda Napadek, 5 to Ms. Curet and 5 to his pharmacist Akiko Friedland.

In June 2015, the deceased approached his lawyer and told her that he wanted to change his will to remove the gift of his personal and household effects to Ms. Curet and to remove any gift to Mr. Vater, Ms. Napadek and Ms. Curet of his residual estate. The lawyer stated she would make the changes and discussed the need for two witnesses to properly validate the will. In early July 2015, the lawyer received a phone message from the deceased in which he advised that Mr. Tangonan would be by to pick up the draft will so he could sign it at home. The lawyer called the deceased and explained that Mr. Tangonan could not be a witness as he was a beneficiary. Later in July, Mr. Tangonan stopped by the lawyer’s office to pick up the will but the lawyer told him that the will and accompanying letter was not yet ready. Later on the same day, the lawyer mailed the will and instruction letter to the deceased.

At the end of July, 2015, the deceased call the lawyer and confirmed he’d received the letter, but did not say that he’d read the will. The lawyer explained to the deceased that he needed to follow the instructions in the letter including not using Mr. Tangonan as a witness. The deceased stated that he was going to use a person named Lisa Marie and find another to be the second person. Having not heard from the deceased, the lawyer followed up with the deceased about the execution of the will in September 2015, but received no response.

The deceased died on October 13, 2015. At the time of his death, he was 66 years old, retired and living alone in his Victoria apartment. He suffered from diabetes and mobility issues. He was found by his home care assistance program after he suffered a fall. After his death, the lawyer found a copy of the July letter to the deceased enclosing the will. She also found a copy of the unsigned will.

After reviewing the handful of cases in which the court has considered whether section 58 applies to a draft will, Justice MacNaughton found that the deceased’s settled intentions with respect to disposition of his estate could not have been reflected in the disposition and that something more was required. An example of something he could have done is providing the lawyer with instructions to destroy the 2014 will.

Bailey Estate

Prior to the Herod Estate case, there was one other BC case in which the document that was sought to be recognized as a draft will: Bailey Estate (Re), 2016 BCSC 1226.

In that case, the deceased had a valid will dated January 2008. The deceased decided she wanted to make changes to her will including changing the name of her executor, gifting real and personal property in Northern Ireland to her husband, and adding alternate residual beneficiaries. The deceased contacted her lawyer to make the changes. The deceased met with her lawyer in 2014 to discuss the changes and the lawyer sent her a copy of the draft will thereafter. The deceased confirmed she received the draft will but said that she was too busy to review it immediately.

The deceased and her lawyer met again in October 2014 about the draft will after which the lawyer made notes on the document to signify changes to the specific gifts. A completed draft will was sent to the deceased on December 2014. After some delay including the deceased’s complaints about the lawyer’s fees, the deceased met with the lawyer in March 2015 about the draft. Attempts to follow up to have the will executed were unsuccessful and the deceased died in October 2015 without signing the will.

Justice Hyslop of the BC Supreme Court found that the draft will was not evidence of the deceased’s testamentary intent because,

1. There were several different drafts;
2. The preparation and execution of the December 2014 will were not of paramount importance to the deceased;
3. A statement made to the lawyer’s spouse when discussing financial matters that the deceased needed to complete the December 2014 draft will could not be interpreted as her stating she intended to sign the draft will; and
4. Between May 2014 and December 2014, the deceased never indicated in word, deed or writing that the December 2014 draft will set out her final expression of her testamentary intent.

Two Manitoba Cases:

Justice MacNaughton, in her reasons in Herod Estate, also reviewed two Manitoba cases in which the main question was the validity of a draft will or similar document:

George v. Daily

In George,  the deceased asked his accountant to write to his lawyer about changing his will because he had decided to cut his children out of his will and replace them with charities. After receiving the accountant’s written instructions, the lawyer insisted on medical clearance certificate confirming the deceased’s mental competence, which was never applied for and within two months of asking his accountant to talk to his lawyer, the deceased died. The document that the court was asked to say were his final testamentary intentions were the accountant’s written instructions to the lawyer. The motions judge ordered that the notes were enough under the equivalent legislation in Manitoba. That ruling was appealed.

The Manitoba Court of Appeal overturned the motions judge’s ruling stating that “While [the Manitoba equivalent] is a remedial piece of legislation, empowering the court to give effect to testamentary intention contained in a document not otherwise conforming to the Act, the section imposes a significant onus on an applicant.  I describe the onus as significant because in disposing of an application under [the Manitoba equivalent], the court must be ever mindful that the question for determination is testamentary intention and the person who can best speak to that intention, the deceased, is not present to give evidence.  The onus will only be satisfied by the presentation of substantial, complete and clear evidence relating the deceased’s testamentary intentions to the document in question.  Oral evidence describing the circumstances surrounding the creation of the document and the deceased’s actions and words in relation to the document might well afford an applicant a better opportunity of satisfying the [Manitoba equivalent] onus than affidavit evidence alone.”

Swatzky Estate

In the second case, Sawatzky v. Sawatzky Estate, 2009 MBQB 222, the deceased had a holographic will dated March 2, 2008. He met with his lawyer after being diagnosed with cancer on April 8, 2008 seeking to make it a formal will. The lawyer and deceased met three days later after which the lawyer provided the deceased with a copy of the draft will but did not discuss it with him. The lawyer later found out from the deceased’s sister that the deceased wanted to finalize the draft will and make substantial changes.

The deceased confirmed the proposed changes by phone from the hospital. The lawyer then attended the hospital and met the deceased. The deceased made some handwritten changes to the draft will that the lawyer provided him, mostly to fix typographical errors. The deceased told the lawyer that he believed he would live until the following June, and explained 14 additional changes he wanted to make including minor increases to existing residual beneficiaries, adding more residual beneficiaries and one residual beneficiary was to be deleted. The lawyer made notes on the draft will of all of the changes except the five additional residual beneficiaries.

Following the meeting, the lawyer took the notes and prepared a typewritten form of the draft will which was what he was asking the court to recognize as testamentary intention of the deceased. The deceased probably had not seen or read the typewritten form that the lawyer brought to the meeting, nor did the lawyer go through the draft will with the deceased. When the lawyer later attended the hospital for the purposes of executing the will, the deceased was heavily sedated and could not sign or review it. The deceased died the next day. At the hearing, the lawyer stated that the deceased’s final instructions and final testamentary intention were in the draft will.

The court found as follows:

[28] Counsel for the applicants argues that significant weight should be given to [the lawyer’s] evidence of his opinion regarding [the deceased’s] intentions because that evidence was not successfully challenged on cross-examination.  However, the law is clear that [the lawyer’s] evidence does not decide the issue of [the deceased’s] intentions; that determination must be made by the court based on all of the evidence.

[29] In terms of the weight to be given to [the lawyer’s]opinion, [the deceased] never stated to [the lawyer] that he had given his final instructions.  Therefore, [the lawyer’s] opinion rests on his ability to assess [the deceased’s] intentions based on their history and the surrounding circumstances.  In this regard, it is noteworthy that [the lawyer] did not have a long-standing relationship with [the deceased].  Rather, he met him for the first time on March 5, and their only other significant contact was on April 28.  In these circumstances, [the lawyer’s] ability to assess [the deceased’s] intentions was, in my view, limited.  As well, [the lawyer’s] evidence on cross-examination reveals that he anticipated that [the deceased] may well have again changed his instructions.”

The court found that the draft will could not be entered into probate.

If you are aware of a draft will prepared by someone you love who has since passed away, please contact us for a free case evaluation.