Columbia, we have formal requirements for signing and
witnessing a will, which I have written about before. But if a document that
the will-maker intends as her will is signed at the end by the will-maker in
front of two witnesses, who also sign the will, it may be valid even if its
form is quite unconventional, and omits many of the clauses that are normally
in a will.
This is illustrated by a recent decision, Garnett Estate, 2013 BCSC 1731. In 2008, Jacqueline Garnett was ill and wished to change her will. Two of her friends, Maureen Desborough, and Susan Winzerling went to a lawyer’s office and obtained a questionnaire. The purpose of the questionnaire was to provide information to the lawyer in anticipation of a meeting at which the Ms. Garnett could give the lawyer instructions to prepare a will.
Ms. Garnett gave her friends the information to complete the questionnaire, and one of them filled it in. She had also given them instructions of amounts she wanted to give to beneficiaries, and one of them wrote her instructions on a separate lists. When Ms. Garnett’s condition deteriorated, she signed the questionnaire in front of her friends, and they also signed it in front of her and each other. One of the lists, setting out amounts to go to charities was appended to the document.
After her death, Ms. Desborough as executor applied to court to prove the will in solemn form, or in other words prove that the questionnaire was a valid will that could be probated.
Madam Justice Russell noted that the questionnaire did not contain some of the clauses usually found in wills, such as a clause vesting the estate assets in the executor, or revoking earlier wills.
Despite its unconventional form, Madam Justice Russell found that the questionnaire was a valid will. The evidence was that Ms. Garnett intended it to be her will, knew and approved of its contents, she was mentally competent to make a will, and it was signed and witnessed in a manner that complied with the Wills Act.
What about the lists? One of the lists naming beneficiaries was not attached to the will, but in response to an item in the questionnaire asking for information about how the will-maker wishes for assets to be distributed, Ms. Garnett had her friend put in the following: “Executors to follow as I have directed them.” After considering the evidence of her friends that the list was made before the will was signed and that it reflected Ms. Garnett’s intentions, Madam Justice Russell found that this was sufficient to incorporate the list into the will by reference. She wrote:
 The validity of the will list depends on the wording of the 2008 document and whether it sufficiently “connects” the list to the will (Re Murnane Estate).
 The wording of clause 32 of the 2008 document states “Executors to follow as I have directed them”.
 In order to understand this clause, it is necessary to admit extrinsic evidence as to how the list was developed and how it was relied on by Ms. Garnett as part of her process in developing the 2008 document as her will.
 The admissibility of extrinsic evidence in this circumstance is dealt with by Allen v. Maddock (1858), 14 E.R. 757 and the many cases which follow it.
 For the list to be made part of the will, the will must describe the list with sufficient clarity for it to be capable of being incorporated into the will. For this purpose, parole [sic] evidence is admissible and if that evidence identifies the list and makes clear there is no doubt as to which document is referred to as a list, then the list may be incorporated as part of the will.
 This parole [sic] evidence, referred to by Ms. Winzerling and corroborated by Ms. Desborough, does not contradict the wording of the will but expands it and, as such, is admissible (Univ. College of Wales v. Taylor,  P. 140 (C.A.) at 147).
 As well, it is clear from the evidence that the will list was in existence at the time of the execution of the 2008 document as a will.
 Ms. Winzerling testified that the will list was developed by discussing beneficiaries with Ms. Garnett almost every day after Ms. Winzerling arrived in Vancouver following Ms. Garnett’s hospitalization in February 2008. Ms. Winzerling would follow these directions and compile the lists and add the addresses of beneficiaries taken from Ms. Garnett’s correspondence.
 I am satisfied that the will list of beneficiaries is both sufficiently connected to the will and its development and existence expressed the wishes of Ms. Garnett and forms part of the will.
The other list, which set out charities and was attached to it, was also incorporated into the will.
Although the will is valid, unfortunately, because Ms. Garnett's friends witnessed the will, the gifts to them are invalid. The new Wills, Estates and Succession Act has a provision (section 43 (4) allowing the court to declare a gift to a witness or spouse of a witness valid if the court is satisfied that the will-maker intended to make a gift to that person. This will alleviate the harshness of the rule, but because the new legislation does not come into effect until March 31, 2014, it does not assist Ms. Winzerling or Ms. Desborough.