Saturday, May 16, 2015

Re Beck Estate

In a previous post, I wrote about the first reported case applying section 58 of the Will, Estates and Succession Act. This section allows the court to give effect to a “record, document, or writing or marking on a will or other document” as a will even though it does not meet the signing and witnessing requirements for a valid will in British Columbia. We now have a second reported decision, Re Beck Estate, 2015 BCSC 676, released on April 29, 2015.

Celena Beck made a will on June 23, 2009. She appointed her son Dietrich Reimer as her executor, gave $25,000 to her granddaughter, and gave her two acre property and the residue of her estate to Deitrich Reimer and her daughterArlene Minshull. The will was made by a lawyer and was properly signed and witnessed.

On November 25, 2012, Ms. Beck made a handwritten record, which she entitled “Codicil to my last will at above date,” and which she signed. She also crossed out the word “codicil” in one place in her will, and wrote “Codicil Enclosed.” There were no witnesses to the handwritten note nor to the markings she added to her will. She gave the handwritten record to her son, the executor.

The contents of the handwritten note are described by Master Young as follows:

The Handwritten Record starts with the words:
Mrs. Celena P. Beck.
Having had my lawyer ‘Mr. Mote’ [sic] make out my will and with myself in my sound mind have been forced to change a few things stated in said will.
[10]         The Handwritten Record goes on to discuss the difficult relationship Arlene has had with the family and her brother, and Arlene’s occupation on her property since 1965. She expresses a wish that Arlene be left alone on the land that she has occupied and worked on over the years; and her wish that Arlene live there for the rest of her life and then leave the land to her only child, Wendy Reimer.

[11]         The Handwritten Record then says:

Rick as my trustee will see that $10,000 goes to my dead Grandsons [sic], son Adam Minshall [sic].
Any money left in Estate should help repair my run-down property.
This will be in Ricks [sic] capable hands.
This is the only Codicil (underlined in red ink) to my legal will.
Celena Pearl Beck.
To be read out by My Lawyer. Mr. Mote [sic] (in red ink)
I thank you (in red ink)

Master Young applied the Manitoba Court of Appeal decision in George v. Daily (1997), 143 D.L.R. (4th) 273 (a case I wrote about here), and Madam Justice Dickson’s decision in Young Estate, 2015 BCSC 182, and considered whether the Handwritten Note represented Ms. Beck’s “deliberate or fixed and final expression” of her wishes. Master Young found that the handwritten note did, but that the only enforceable provision was the gift to Adam Minshull.

Master Young wrote:

 [18]         The Handwritten Record is dated and signed and is written by the deceased. The executor recognizes the handwriting and signature as that of the deceased. Her signature is not witnessed. The wording, “Codicil to my last will” and the words, “To be read out by My Lawyer. Mr. Mote” [sic] suggests to me that this document contains a deliberate or fixed and final expression of intention as to the disposal of her property upon her death. Although the document does not make reference to funeral arrangements, it does make reference to the reading of the Will, which suggests a final expression.

[19]         The fact that the deceased gave this document to her executor for safekeeping one week before her death and told him that she thought the unwitnessed Codicil was a valid Codicil, reinforces my conclusion that this is a final expression of her testamentary intention.

[20]         Some of the content in the Handwritten Record is unenforceable. She speaks of her wish as to how her daughter will use the gift of property when she says:
Arlene must be left alone on the place she has worked all these years and made beautiful as a Park. I would like her to do so the rest of her life. Then leave it for her only child Wendy Reimer …
[21]         In Eberwein Estate (Re), 2012 BCSC 250, the executor sought advice and direction from the court regarding bequests in a Will which were unclear. The bequest that is relevant for this discussion was a gift of $1,000,000 to a beneficiary with direction that she invests the money to purchase a revenue-producing property. Madam Justice Griffin says:
[30]      Courts are greatly suspicious of attempts by testators to give with one hand and retain with the other. If an absolute gift is made, accompanied by uncertain language expressing a wish or request, the courts are reluctant to imply a trust: McIver Estate v. McIver, [1981] B.C.J. No. 68 (S.C.) at para 4; Sutherland Estate v. Nicoll Estate, [1944] S.C.R. 253 at 262, [1944] 3 D.L.R. 551 [sub. nom. Hayman v. Nicoll]. In the McIver case, the word “trust” was used and so the court did not consider the words to be “merely precatory or recommendatory”. However, in the present case, the word “trust” was not used in the clause at issue. Rather, I find that the words used here imposed no defined restrictions on the beneficiaries and are so loose that a trust could not have been intended by Ms. Eberwein, who was sufficiently sophisticated to have spelled out a trust clearly if that is what she intended.
[22]         Ms. Beck made an absolute gift of property to her daughter in the Will. The Handwritten Record contains uncertain language, expressing a wish as to how the property will be used. I do not find that the Handwritten Record creates a trust, but is an expression of wishes or recommendations.

[23]         The only clear gift contained in the Handwritten Record is the gift of $10,000 to “my dead Grandsons [sic], son Adam Minshall” [sic].

[24]         I find that this gift to Adam Minshull is a deliberate expression of the deceased’s wish and testamentary intention, so I will exercise the curative power under the authority of s. 58 of the WESA. I order that that portion of the Handwritten Record is fully effective, as though it had been made as part of the Will.

[25]         I have also considered the words:
Any money left in Estate should help repair my run-down property.This will be in Ricks [sic] capable hands.
 The residue clause in the Will says that the residue of the estate is to be divided between “Dietrick Reimer” [sic] and “Arlene Minshall” [sic]. I do not find that these words in the Handwritten Record constitute a deliberate expression of testamentary intention to vary the residue clause in the Will.

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