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In Re Bach Estate, 2017 BCSC 548 a testator left his entire estate to one sister in a one page will, signed the night before he died to the exclusion of his other sisters, children and stepchildren. Ms. S, the lucky sister applied to court for a declaration that the one page document and the gift of the entire estate to her was valid.

One of the stepchildren opposed the application alleging that Mr. B did not have the testamentary capacity to make a will. Under the law, a person must be able to comprehend and recollect what property they own, the person receiving said property, how much property is given to each person and the nature of the claims of anyone who is excluded. The leading case dealing with testamentary capacity is Banks v. Goodfellow (1870), L.R. 5 Q.B. 549 and the test for capacity to make a will is described as being “not particularly onerous”. Where a will is made by a testator who knew and approved the contents of the will and is executed with according to the formalities required of a will under Wills, Estates and Succession Act, SBC 2009 (“WESA”), the law presumes that the deceased person had capacity to make a will.

In this, the will case was witnessed by a doctor who heard Estthe deceased read the document aloud and indicated that he agreed with its contents. Based on this Mr. Justice Kelleher found that the Mr. B was presumed to have capacity and that no evidence displaced this capacity. Additionally, evidence from other relatives indicated that Mr. B had told others about his plan to change his will.

After finding that r. B had the necessary capacity to make a will, he determined that the will and the gift under the will were also valid.

Section 37 of WESA lists the requirement for a will to be valid, which mandate the will must be in writing, signed by the will-maker in the presence of 2 more witnesses present who are also required to sign the will in the will-makers presence. Section 40 of WESA also sets out requirements for witnesses of a will. A witness to a will must be 19 years of age or older. Section 40 also provides that a person may witness a will even though they receive a gift in that will, but the gift may be declared void.

Section 43 of WESA deals with void gifts under a will and provides that a gift may be void if it is made to a person who witnesses the signing of the will or to their spouse

Although Mr. B’s one page will signed before his death met all the requirements one of the witnesses to the will was the husband of Ms. T, making the gift to Ms. T void unless the court declares otherwise.

Prior to WESA, once a gift was made to such a person the court had no discretion to declare that the gift was valid; it was void. Under WESA, the court has discretion to declare the gift valid if they are satisfied that the will-maker truly intended to make that gift to the person.

The evidence of friends and relatives of Mr. B showed that he intended to leave everything to Ms. T and Mr. Justice Kelleher ultimately found that the gift not to be void on that basis.

Deathbed Will found to be Valid under WESA
April 7, 2017

In Re Bach Estate, 2017 BCSC 548 a testator left his entire estate to one sister in a one page will, signed the night before he died to the exclusion of his other sisters, children and stepchildren. Ms. S, the lucky sister applied to court for a declaration that the one page document and the […]

Is a Draft Will Legal?
March 7, 2017

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 […]

Deed of Gift Unnecessary to Avoid Resulting Trust
February 21, 2017

A recent court of appeal decision makes it clear that evidence of a full and complete gift (rather than resulting trust) does not necessarily mean a “deed of gift”. The recent court of appeal case regarding the McKendry Estate involved Mary McKendry (deceased), her 5 children (4 daughters 1 son), and the Vancouver property purchased by […]

5 Ways to Get Removed as Executor
November 24, 2016

There’s nothing worse than dealing with a bad executor after the death of a loved one. They have all the control and as beneficiary you have all of the rights, or so you’re told. But what if they just won’t be reasonable? They say they’re going to tie up the estate up years. They are […]

Wills Variation Warrior
April 9, 2014

British Columbia wills variation lawyers have pause to remember one of the great warriors of the past. One of the seminal decisions for the unique British Columbia statutory provision giving the court authority to change a will is the now 83-year-old Supreme Court of Canada Contested Will Claim Walker v. McDermott [1931] SCR 94. This […]

Limiting Powers of Attorney
September 27, 2013

Recently in Easingwood v. CRockroft, 2013 BCCA 182, the honourable Madam Justice Saunders of the British Columbia Court of Appeal considered the legalities arising when an attorney under a power of attorney creates an alter ego trust on behalf of a principal. For a better understanding of alter ego trusts, please click here. The case […]

What is an Alter Ego Trust?
September 23, 2013

An alter ego trust may be used to avoid wills variation claims. When someone dies, everything that was in their legal name at the time of death is presumed to form part of the deceased’s estate. It is the deceased’s estate that then passes to beneficiaries. Who the beneficiaries are is usually determined by the […]

Inherent Jurisdiction
August 1, 2013

In the recent WVA case of Reznik v. Matty, 2013 BCSC 1346 Mr. Justice Funt reviewed the law relating to the inherent jurisdiction of the Supreme Court of British Columbia. The case involved an estate worth approximately $650,000 consisting of about $100,000 in cash or near cash and approximately $550,000 in real estate. The testator […]

Moral versus Legal Claims
April 14, 2013

Beyond a consideration of the competing legal claims are the moral claims which the courts must consider in deciding a Wills Variation Act claim. These moral claims are usually more individual and specific than legal claims and can include the most varied considerations, some of which be assured/implied expectations, disability and financial circumstances. It will […]

Adequate Provision that is Just and Equitable
April 10, 2013

The most intriguing part of the Wills Variation Act (now the Wills, Estates and Succession Act) is that “adequate provision for the proper maintenance and support” and “adequate, just and equitable” is judged in light of contemporary community standards, legal and moral. These legal and moral standards are different in different parts of our country, different in […]

Understanding Wills Variation
April 6, 2013

It was the earlier lobbying of women’s groups in the early 20th century that was responsible for the enactment of the first Wills Variation Act (now the Wills Estates and Succession Act). The evolving rights and role of women in society has continued to stand behind the interpretation of the Wills Variation Act by the […]

What is a Beneficial Interest?
April 1, 2013

A beneficial interest is a term used to describe the situation that occurs when something is held in “trust”. You may have a beneficial interest in something if you are the “real” owner of it, but legally it is “held” by someone else. For example, Benny is 80 years old. Benny buys this house with […]

Estate Left to Stars Likely Challenged
March 18, 2013

A BC estate is subject to the Wills, Estates and Succession Act (WESA, formerly the Wills Variation Act). WESA allows spouses and children to vary wills of their parents and spouses. In such cases, the court struggles with balancing two principles: that a deceased has the right to choose what should happen with their assets […]

Varying Wills in British Columbia
December 12, 2012

Estate litigation lawyers use part of the Wills Estates and Succession Act (or WESA, formerly the Wills Variation Act) when varying wills. In British Columbia, wives, husbands and children are protected from their parents or spouses writing wills and leaving their assets in a way that offends contemporary community standards. Section 60 of WESA (formerly Section […]

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