Are Unexecuted (Unsigned) Wills Valid? Maybe; the BCSC Comments.

Madam Justice Matthews in the recent decision of Bishop Estate v Sheardown, 2021 BCSC 1571, had to consider whether an unexecuted 2020 Will was authentic and whether it expressed the testator’s (aka the deceased’s) “fixed and final testamentary intentions” despite the fact that she failed “to execute it over the four months following the date it was ready for execution”.

In beautifully written reasons for judgement, the BCSC Court Judge stated as follows:

[1]         In March 2020, the world ground to a halt as a result of the COVID-19 pandemic. Offices were shuttered, schools were closed, and in person meetings and gatherings were only permitted for essential purposes. Marilyn Bishop cancelled her appointment at her lawyer’s office to execute her new will. She had given her instructions, reviewed the draft, and made a few minor clarifications. All that remained was to have the will signed and witnessed. Ms. Bishop passed away before she could do so.

[2]         The petitioner, James Thrower, is the executor of Ms. Bishop’s previous will, which was executed on June 27, 2014, naming her now-deceased husband as her sole beneficiary and the respondent Kelowna General Hospital Foundation as her beneficiary in the event her husband predeceased her. The respondents Robert Sheardown and Deborah Sheardown are Ms. Bishop’s nephew and niece-in-law (collectively, the “Sheardowns”) whom she named as the executors and primary beneficiaries of her unexecuted 2020 will.

[3]         Mr. Thrower seeks the direction of this court as to whether Ms. Bishop’s unexecuted 2020 will represents her testamentary intention and should be ordered to be effective under s. 58 of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 (“WESA”).

[4]         The Sheardowns submit that the COVID-19 pandemic was the sole reason why Ms. Bishop did not execute the unexecuted 2020 will. They seek an order that the unexecuted 2020 will is valid and represents the deliberate and final intention of Ms. Bishop.

[5]         Kelowna General Hospital Foundation submits that Ms. Bishop’s assets should be distributed under the 2014 will. Kelowna General Hospital Foundation does not take issue with Ms. Bishop’s testamentary capacity or that she was unduly influenced by the Sheardowns. It submits that the unexecuted 2020 will is substantially invalid and so cannot be cured under s. 58 of WESA. Moreover, it submits that the evidence does not demonstrate that her intention was fixed and final because when she instructed her lawyer to not include a charity as a beneficiary she said “[n]o charities at this time” and she did not make any attempt to execute her will remotely, despite being permitted to do so by ministerial order as of May 19, 2020.

Ultimately, the Court was satisfied that the unexecuted 2020 Will represents the testator’s fixed and final intentions for the disposal of her assets. It was clear, according to the Court, that the deceased wanted to remove Kelowna General Hospital Foundation as a beneficiary of her will. Accordingly, pursuant to the court’s curative power under s. 58 of WESA, the Court ordered the 2020 unexecuted will to be fully effective.

In reviewing the law, the Court stated as follows:

[7]         Section 37(1) of WESA sets out three requirements that a will must meet to be valid:

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.

[8]         A will lacking any of the above three requirements is invalid: WESA, s. 37(2). However, under s. 58 of WESA, a court may cure the deficiencies of the non-compliant will and order it to be effective:

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…

[9]         Madam Justice Dickson, after reviewing the Manitoba case law on a similar curative provision, set out the analytical framework under s. 58 in Estate of Young, 2015 BCSC 182:

[34]         As is apparent from the foregoing, a determination of whether to exercise the court's curative power with respect to a non-compliant document is inevitably and intensely fact-sensitive. Two principal issues for consideration emerge from the post-1995 Manitoba authorities. The first in [sic] an obvious threshold issue:  is the document authentic?  The second, and core, issue is whether the non-compliant document represents the deceased's testamentary intentions, as that concept was explained in George.

[35]         In George the court confirmed that testamentary intention means much more than the expression of how a person would like his or her property to be disposed of after death. The key question is whether the document records a deliberate or fixed and final expression of intention as to the disposal of the deceased's property on death. A deliberate or fixed and final intention is not the equivalent of an irrevocable intention, given that a will, by its nature, is revocable until the death of its maker. Rather, the intention must be fixed and final at the material time, which will vary depending on the circumstances.

[36]         The burden of proof that a non-compliant document embodies the deceased's testamentary intentions is a balance of probabilities. A wide range of factors may be relevant to establishing their existence in a particular case. Although context specific, these factors may include the presence of the deceased's signature, the deceased's handwriting, witness signatures, revocation of previous wills, funeral arrangements, specific bequests and the title of the document:  Sawatzky at para. 21; Kuszak at para. 7; Martineau at para. 21.

[37]         While imperfect or even non-compliance with formal testamentary requirements may be overcome by application of a sufficiently broad curative provision, the further a document departs from the formal requirements the harder it may be for the court to find it embodies the deceased's testamentary intention:  George at para. 81.

[10]      The Court of Appeal adopted this framework in Hadley Estate (Re), 2017 BCCA 311 at para. 36, with Dickson J.A. writing for the court. Justice Dickson elaborated on the evidence the court may consider on a s. 58 application:

[40]         Sitting as a court of probate, the court’s task on a s. 58 inquiry is to determine, on a balance of probabilities, whether a non-compliant document embodies the deceased’s testamentary intentions at whatever time is material. The task is inherently challenging because the person best able to speak to these intentions – the deceased – is not available to testify. In addition, by their nature, the sorts of documents being assessed will likely not have been created with legal assistance. Given this context and subject to the ordinary rules of evidence, the court will benefit from learning as much as possible about all that could illuminate the deceased’s state of mind, understanding and intention regarding the document. Accordingly, extrinsic evidence of testamentary intent is admissible on the inquiry: Langseth Estate v. Gardiner (1990), 1990 CanLII 7935 (MB CA), 75 D.L.R. (4th) 25 at 33 (Man. C.A.); Yaremkewich Estate (Re) at para. 32; George. As is apparent from the case authorities, this may well include extrinsic evidence of events that occurred before, when and after the document was created: see, for example, Bennett; George; Estate of Young; Re MacLennan Estate (1986), 22 E.T.R. 22 at 33 (Ont. Surr. Ct.); Caule v. Brophy (1993), 50 E.T.R. 122 at paras. 37–44 (Nfld. S.C.).

[11]      Accordingly, to order that the unexecuted 2020 will is valid, I must be satisfied that it is (i) authentic; and (ii) represents Ms. Bishop’s deliberate or fixed and final intentions regarding the disposal of her property upon death.