Friday, February 13, 2015

Estate of Young: Curative Provisions of Wills, Estates and Succession Act.

We now have a reported case applying the new British Columbia legislation allowing the court to give effect to a document or other record as a will even though it does not comply with the formal signing and witnessing requirements for a valid will. This curative provision is section 58 of the new Wills, Estates and Succession Act, and I have written about it before.

The case is Estate of Young, 2015 BCSC 182, and Madam Justice Dickson released her reasons for judgment on February 6, 2015. It is significant because it is the first precedent in British Columbia, and the approach Madam Justice Dickson took to section 58 will likely influence future cases.

Sharone Young made her will on March 2, 2009, in which she appointed The Canada Trust Company as her executor. One clause in the will instructed the executor to dispose of articles of personal, domestic and household use or ornament in accordance with a memorandum that she would leave with her will.

The March 2, 2009 will was properly signed and witnessed, and there was no question about the validity of it. But The Canada Trust Company, through its lawyer John Bilawich, asked the court whether two later documents represented her testamentary intentions, and should be given effect as though they were part of her will.

Madam Justice Dickson described the first document as follows:

[9]             The June 17 Documents has two pages.  The first page is headed "Sharone Young" and "June 17, 2013", followed by the words:

Distribution of furniture, art, antiques, jewelry, sculptures, First Nation masks etc. This is being prepared if I have not sold, given in advance of death.

Thereafter, six people, described as beneficiaries, are named and, under each name, several items of personal property are listed.  The final words on the first page are:

If items not taken buy any of the beneficiaries provide to sell - Maynards Auction, Consignment shops in West Vancouvers including antiques and designer clothes, mink coat.  Maynards would be good resource for items they do not sell for auction.

There are items not named that could be the choice of named beneficiaries.

[10]         The first page of the June 17 Document is signed by Ms. Young.

[11]         The second page of the June 17 Document begins with the words "Beneficiary Contacts Information".  Thereafter, the following words appear:

For physical items in home or safety deposit box (jewelry for Kelly Young)) Bank of Montreal, Main and Mountain Hwy, North Vacouver, BC.  It is my intention to give before my passing.

[ list of names and contact information ]
Money for estate to provide through Will:

[ list of names of individuals and organisations ]

This is being provided as a caution.  Zach and Faren can be responsible, with help, once old enough to be responsible.

On that same day, Ms. Young showed an unsigned copy of the June 17 Document and asked her to help assist with distributing items to people who wanted them, and find places for the remaining items.

With respect to the second document:

[13]         The October 15 Document has one page.  Ms. Young's address and the date appear at the top of the page, followed by these words:


This will serve to confirm, I have requested Nancy Sunderland of 1920 Riverside Dr., North Vancouver, BC to distribute to named beneficiaries household effects including art, all antiques, all furniture.  Specific items have been identified for specific beneficiaries.  As well, beneficiaries may also choose other items not named for them for the rest.

Because Zach and Faren Cross-Nadeau are the youngest, they may have first choice of unnamed items.  Jefferey Young and then the others based upon age for fairness.  Items not taken by all beneficiaries are to be consigned, sold or auctioned on behalf of the estate.

Ms. Young did not sign the October 15 Document.

If finding that the June 17 Document, but not the October 15 Document, represented Ms. Young’s testamentary intentions and should be given effect, Madam Justice Dickson applied the approach of the leading Manitoba Court of Appeal case on Manitoba’s curative legislation, George v. Daily (1997), 143 D.L.R. (4th) 273, a case I wrote about here.

Madam Justice Dickson summarized the approach as follows:

[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 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 [v. Sawatzky, 2009 MBQB 222] at para. 21; Kuszak [v. Smoley, [1986] M.J. No. 670 (Q.B.)] at para. 7; Martineau [v. Myers Estate, [1993] M.J. No. 339 (Q.B.)] 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.

The factors that lead Madam Justice Dickson to conclude that the June 17 Document represented Ms. Young’s testamentary intentions were that the language conveyed “an air of finality,” that it was generally consistent with the provisions of her will, that she signed it and left it on her dining room table where it could be found by others, and that she showed an unsigned copy to her neighbour and sought her assistance in carrying out Ms. Young’s wishes.

In contrast, the October 15 Document did not constitute a disposition, but contained an expression of Ms. Young’s non-binding wishes. She did not sign it, nor was there evidence that she showed it to anyone. 

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