Re: Moore Estate

One of the reforms to British Columbia’s succession laws that will be implemented when the Wills, Estates and Succession Act comes into force on March 30, 2014, is that the Supreme Court of British Columbia will have the power to admit into probate a document that does not meet the formal requirements for a will in British Columbia, if the court is satisfied that the document represents the testamentary intentions of the deceased. I wrote about section 58 of the Wills, Estates and Succession Act here.

How will the courts in British Columbia interpret this new provision? Will all manner of documents such as email promises of inheritances be given effect as wills? Or will it be interpreted fairly narrowly, saving only those documents that were clearly intended as wills, but which do not meet the formal requirements because of some technical error, as occurred in Toomey v. Davis, 2003 BCSC 2011?

I don’t know the answer, but I expect that British Columbia courts will consider how courts in other provinces have interpreted similar legislation.

The Manitoba Court of Queen’s Bench recently considered a similar provision of Manitoba’s Wills Act in Re: Moore Estate, 2013 MBQB 82 (Canlii).

Harry Moore died March 9, 2011 at the age of 96. He had made a will dated June 11, 2008 with two codicils, one dated August 19, 2008 and the second July 28, 2009. He had no immediate family, and left most of his wealth to charities. In his 2008 Codicil, he left his paid caregiver Rose Palahnuk $400,000 and a share of the residue of his estate, but reduced the gift to her to $100,000 in his 2009 Codicil.

Rose Palahnuk brought an application under section 23 of the Wills Act to give effect to the $400,000 gift to her on the basis that Harry Moore had said in February 2011 that he wanted the $400,000 gift reinstated. She gave evidence that he instructed his lawyer, Timothy Taylor, that he wanted to change the gift back to $400,000.

Mr. Taylor, on the other hand, gave evidence that Mr. Moore did not instruct him to change the will to provide Ms. Palahnuk with a $400,000 gift. He characterized Mr. Moore’s discussions with him about doing so as Mr. Moore “wondering” or “musing.” When Mr. Moore gave him actual instructions he was always precise.

Section 23 of the Manitoba Wills Act says:

 23      Where, upon application, if the court is satisfied that a document or any writing on a document 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;

the court may, notwithstanding that the document or writing was not executed in compliance with any or all of the formal requirements imposed by this Act, order that the document or writing, as the case may be, be fully effective as though it had been executed in compliance with all the formal requirements imposed by this Act as the will of the deceased or as the revocation, alteration or revival of the will of the deceased or of the testamentary intention embodied in that other document, as the case may be.

The first problem with Ms. Palahnuk’s application was that Mr. Moore’s statements about changing the gift back to $400,000 is that it was not in writing.

Apart from the fact that it was not in writing, Madam Justice Suche found that his expressions were not sufficiently deliberate to be given effect as his testamentary intentions.

She considered section 23 in the context of the rationales for requiring certain formalities to make wills:

[51]        As can be seen, then, imperfect compliance, even non-compliance, with the formal requirements of the Act can be excused by the dispensation power in s. 23. 

[52]        The leading authority on this section is the Manitoba Court of Appeal decision in George v. Daily et al. reflex, (1997), 115 Man.R. (2d) 27.  There, Philp J.A. considered the underlying policy reasons for the formal requirements of wills legislation generally and the Act specifically.  Quoting the earlier decision of Langseth Estate, Re reflex, (1990), 68 Man.R. (2d) 289 (Man. C.A.), he says:

[21]   … In Langseth, I said of them (at p. 295): 

Professor Langbein identified the main purposes or functions of the formality requirements of the Wills Act as (1) the "evidentiary" and "cautionary" functions in which the requirements of writing, signature and attesting witnesses impress the participants with the solemnity and legal significance; and provide the court with reliable evidence of testamentary intent and of the terms of the will; (2) the "channelling" function, in which the formal requirements result in a degree of uniformity in the organization, language and content of most wills; and (3) the "protective" function in which the formal requirements may protect the testator from imposition or fraud.

[53]        Noting that the evidentiary and cautionary functions are particularly relevant to the determination of whether a document embodies the testamentary intentions of a deceased, Philp J.A. referred to the description of these functions contained in the Manitoba Law Reform Commission's 1980 report "The Wills Act" and the Doctrine of Substantial Compliance:

[22]   It is the "evidentiary" and "cautionary" functions that are particularly relevant to the determination of whether or not a writing or document embodies the testamentary intentions of a deceased.  The Commission described these functions in its 1980 report.  The Commission explained (at p. 15):

Reliable and permanent evidence of intention, genuineness and clarity of terms is ensured by "the Wills Act" formalities.  Writing is permanent evidence which can be presented to a court at a later date.  Signature at the end assures the court of the authenticity of the whole document.  The requirements as to witnesses provide the court with parties who can give evidence to prove the will.  By their being disinterested, the evidence of the witnesses is not self-serving.  The testator signing or acknowledging in the witnesses' presence provides evidence of intent.  And attestation and subscription give verification of their role.

[23]   With respect to the "cautionary" function, the Commission wrote (at p. 16):

For a will to be valid it must be established that a testator intended his words to be legally operative.  It must be clear that the finality and solemnity of the occasion were impressed upon the testator.  This function is served by "the Wills Act" formalities.  Writing is more final than oral declarations in the sense of the expression that "talk is cheap".  Signature in our society is a sign of final authorization.  Most people will not lightly sign a document entitled "last will and testament".  All the witnessing provisions – presence, attestation and subscription – make the entire process very ceremonial, impressing upon the testator the importance of his actions.

[24]   In Classification of Gratuitous Transfers (referred to in the quotation from the Commission's 1980 report above), the authors expand upon the reasons for the existence of the formal requirements and the functions they perform.  They write (at p. 3):

The fact that our judicial agencies are remote from the actual or fictitious occurrences relied on by the various claimants to the property, and so must accept second hand information, perhaps ambiguous, perhaps innocently misleading, perhaps deliberately falsified, seems to furnish the chief justification for requirements of transfer beyond evidence of oral statements of intent.

[25]   Of the cautionary function (which they refer to as the "ritual" function), they explain (at pp. 3-4):

In the first place, the court needs to be convinced that the statements of the transferor were deliberately intended to effectuate a transfer.  People are often careless in conversation and in informal writings. … Casual language, whether oral or written, is not intended to be legally operative, however appropriate its purely verbal content may be for that purpose.  Dispositive effect should not be given to statements which were not intended to have that effect.  The formalities of transfer therefore generally require the performance of some ceremonial for the purpose of impressing the transferor with the significance of his statements and thus justifying the court in reaching the conclusion, if the ceremonial is performed, that they were deliberately intended to be operative.

A much more important function the formalities serve is the evidentiary one.  Since the courts "are remote from the actual circumstances" [A.G. Gulliver and C.J. Tilson, Classification of Gratuitous Transfers (1941) 51 Yale L.J. 1, at 3] which claimants rely on to establish their interests, it is necessary that they be provided with sufficient evidence of the event.

Mr. Moore had made 7 changes to his will in the last ten years of his life. He understood the solemnity and ritual of making a will, and was always precise in his instructions.

Madam Justice Suche wrote:

[66]        "Talk is cheap”, that well-known adage, was recognized by the Law Reform Commission report cited in George as one reason that testamentary intentions need to be in writing.  Whether Mr. Moore was trying to deceive the applicant, making casual comments, or just wanted peace, one cannot help but think that Mr. Moore knew this adage to be true. 

 [67]        In all of the circumstances, it would be dangerous to conclude that Mr. Moore's alleged comments to Mr. Taylor amounted to an expression of testamentary intent.

In the result, Ms. Palahnuk is only entitled to the $100,000 Mr. Moore left to her in the 2009 Codicil to his Will.