Lane Estate

There have now been several reported cases in British Columbia in which the courts have been asked to give effect to a document that does not meet the formal requirements for a valid will pursuant to section 58 of the Wills, Estates and Succession Act. This section allows the court to give effect to a document or other record as a will if the court is satisfied that it reflects the testamentary intentions of a deceased person.

I have written about the first reported case dealing with this issue in British Columbia, Estate of Young, 2015 BCSC 182, here, and another case Beck Estate, 2014 BCSC 676, here. In both these cases the courts gave effect to a document that did not comply with the formal requirements.

We now have a reported case in which the Supreme Court of British Columbia declined to give effect to any of the non-compliant documents the Court was asked to consider. The case is Lane Estate, 2015 BCSC 2162, a decision of Mr. Justice Pearlman.

Elda Lane made a will in 1994 in which she left the residue of her estate to be divided equally between her son, Warwick Lane, and her daughter, Deborah Alsop. She signed the will in the presence of two witness in accordance with the formal requirements for a valid will.

On her death on April 14, 2015, Ms. Lane’s main assets were her house and a bank account. The value of her estate was approximately $400,000.

Between April 14, 2012 and January 9, 2015 she made seven documents in which she purported to leave her house and her funds to her son (the words she used to describe the assets she was leaving to her son varied, such as house and bank account, house and money, house and everything).  Some were signed and some were not:

The April 14, 2012, October 21, 2012 and July 2013 notes are each signed at their end by the deceased.  On the May 3, 2014, November 3, 2014, December 15, 2014 and July 9, 2015 notes, the deceased wrote her name at the top of the note, and either signed "Mom" at the end of the note, or in the case of the November 3, 2014 note, left the end of the note unsigned.

Elda Lane told her son several times that she wanted to leave him her house and that she left a note in her house. He told her that if she wanted to change her will, she should see a lawyer, but she said that the note was “good enough.”

Mr. Justice Pearlman found that all of the notes were authentic, that she had capacity to make a will, and that there was no evidence of undue influence. He inferred that the relationship between Elda Lane and her daughter was “strained,” but that they were not “estranged.”

Applying the Estate of Young, and Beck Estate decisions as well as the Manitoba Court of Appeal decision in George v. Daily,[1997] M.J. No. 51, Mr. Justice Pearlman considered whether  the notes, or any of them, represented a deliberate and fixed or final intention of Ms. Lane’s testamentary intentions.

He considered the factors both for and against giving effect to the documents:

[44]         The factors that might support a finding that the notes represent the testamentary intention of the deceased are:

(a)          the deceased used the formal language of "I, Elda Lane leave ... to my son" in several of the notes;
(b)          some of the notes are signed at their end by the deceased;
(c)          the deceased told the petitioner she wanted him to have her house after she died and that she had left a note to that effect;
(d)          six of the notes contemplate a distribution of the estate by which the petitioner would receive all of the residue of the estate.  The October 21, 2012 note identifies the property to be left to the petitioner as including the deceased's principal assets, her house and the Scotiabank account.

[45]         I have excluded the April 14, 2012 note.  That note, written on the back of a Safeway receipt, states that the deceased is leaving her house to her son, and that she is leaving her son "in charge of my bank account ... with Scotia Bank."  In my view, the latter statement is as consistent with an expression of a wish by the deceased that the petitioner manage her finances as it is with an intention to make a bequest.  I find that the April 14, 2012 document is not a deliberate or fixed and final statement of the deceased's testamentary intention.

[46]         The factors that weigh against a finding that one or more of the notes represent the deceased's testamentary intentions are as follows:

(a)          each of the notes is written on the back of a receipt, grocery list, calendar, or other scrap paper, suggesting impermanence and informality rather than a fixed and final intention;
(b)          none of the notes were witnessed.  They all lack one of the fundamental hallmarks of formal validity;
(c)          there is no express revocation of the deceased's Will.  This case is distinguishable from Estate of Young where the document admitted to probate was generally consistent with the deceased's will;
(d)          none of the documents bear a title.  In Beck Estate, unlike this case, the deceased described the document in issue as a codicil to her last will.  She left instructions for the document to be read out by her lawyer.  She also left a copy with her executor.  Here, there is no evidence that the deceased either showed or provided copies of her notes to anyone else;
(e)          the deceased appears to have made the December 15, 2014 and  January 9, 2015 notes at times when she thought she might shortly die.  By suggesting that the gift was contingent upon her imminent death these notes may not represent an expression of the deceased's fixed and final testamentary intention;
(f)           some of the documents are in the form of personal notes addressed to the petitioner, a further departure from the formal requirements of a testamentary document.

[47]         In the particular circumstances of this case, I attach little weight to the deceased's apparent belief that her notes were effective to change her Will.  None of the notes explicitly state an intention to revoke her gift of one-half of the residue of the estate to Ms. Alsop.

He concluded that they did not represent Ms. Lane’s testamentary intentions.

[48]         After weighing all of these factors, I find on the balance of probabilities that the notes, whether considered individually or collectively, do not represent a deliberate and final expression of the deceased's testamentary intentions.  In making that determination, I give particular weight to the absence of any witnesses, the fact that all of the notes were made on scrap paper, the absence of any express revocation of the Will or the gift of one-half of the residue to Ms. Alsop, the lack of any evidence the deceased had any rational basis for disinheriting Ms. Alsop, and indeed the lack of any evidence that the deceased ever turned her mind to how the wishes she expressed in the notes would affect her earlier testamentary dispositions.

In the result, the residue of Elda Lane’s estate will be divided equally between her daughter in accordance with her 1994 will.