Not a Plugged Nickle

John Bellamy kept journals. In one of them he wrote his holograph will, which is a will wholly in his own handwriting, signed by him, but not witnessed.

In Saskatchewan, you may make a valid holograph will. It should be noted that, with very rare exceptions, the British Columbia Wills Act does not recognize holograph wills as valid wills.

Mr. Bellamy’s holograph will contained the following:

The remainder of my estate I leave to the Executor Trevor Robinson. subject to my slush fund approval & that of slush fund measured by amit rec. shareholders thereof. The Korean painted screen at present standing on E side of my desk is the property of Yeong Oh – latest phone (604) 526-0517 in Burnaby B.C. also she gets the 236 Ave H N building & containing it. slush fund share as best friend & girlfriend. & whatever other item she is entitled too. (sic)

Ms. Oh had been a friend of Mr. Bellamy for over twenty years.

The rest of Mr. Bellamy’s holograph will was described by Mr. Justice Richards in the Saskatchewan Court of Appeal:

[11] The document next recounts various other bequests with reference to categories of beneficiaries described in the words “Categories Male Best friends Best Friends Female Best friends girl friends.” It also states that “Category of the not a plugged nickle [sic] means get nothing… .” At the foot of the third page, the document concludes with the words “I’m to be cremated & ashes to SSK River after living will provisions carried out. hoping to be forgiven for any unintentional foibles as I forgive others.” The document is then signed “John G. Bellamy.”

The next page in the journal was blank. There then followed a page with the following:

As of July 10 Yeong Oh is on the not a plugged nickle [sic] category.

This entry was not dated and signed. It would not qualify as a holograph will, and following Mr. Bellamy’s suicide, Ms. Oh argued that the clause putting her in the “not a plugged nickle category” was not valid, and she that remained entitled to part of his estate as set out in the first entry.

In Oh v. Robinson, 2012 SKCA 27 (CanLII), the Saskatchewan Court of Appeal upheld the Court of Queen’s Bench decision that the clause putting Ms. Oh on the “not a plugged nickle category” would be given effect as a codicil revoking the gifts to Ms. Oh.  

In reaching the conclusion that the clause was valid, the Court of Appeal considered a section of Saskatchewan’s Wills Act that allows the Court to give effect to a document that does not meet the requirements of a valid will, but which does reflect the will-maker’s intentions.

Mr. Justice Richards wrote:

Section 37 of The Wills Act, 1996, referred to and relied on by the trial judge, says a writing which is not prepared as required by provisions such as ss. 8 and 11(3) can be effective if a judge decides that it reflects the testator’s intentions to (in this case) alter the will.  Section 37 says this:

37  The court may, notwithstanding that a document or writing was not executed in compliance with all the formal requirements imposed by this Act, order that the document or writing be fully effective as though it had been properly executed as a court, on application is satisfied that the document or writing embodies:

(a) the testamentary intentions of a deceased; or
(b) the intention of a deceased to revoke, alter or revive a will of the deceased or the testamentary intentions of the deceased embodied in a document other than a will.

How would this case have been decided under British Columbia law?

As of the date I am writing, September 30, 2012, if Mr. Bellamy had made these journal entries in British Columbia, neither the entries giving Ms. Oh the gifts, nor the entry putting her in the “not a plugged nickle” category would be valid. British Columbia does not currently have a provision similar to section 37 in the Saskatchewan Wills Act.

But the new Wills, Estates and Succession Act, which has been passed by the Legislative Assembly but is not in force as of the date of this post, has the following provision:

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.

When the new legislation comes into force, British Columbia Courts will also have the ability to give effect to documents similar to the entries in Mr. Bellamy’s journal.