May a Lawyer's Notes or Draft Will be Given Effect as a Will in British Columbia if the Client Dies Before Completing her Will?

Uppermost in the mind of an estate-planning lawyer is the risk that a client will give instructions for a will, but die before the will is signed. This is naturally more of a concern if the client has been diagnosed with a terminal illness, but can happen any time. Can the client’s instructions to the lawyer be given effect? Up until the Wills, Estates and Succession Act (“WESA”) came into effect about two –and-a-half years ago, my answer in British Columbia would have been “no,” unless the lawyers notes were signed and witnessed in accordance with the formal requirements for a valid will, which is unusual.

Now, the court may give effect to a document, or other record, that does not comply with the formal signing and witnessing requirements for a valid will. The Supreme Court of British Columbia could give effect to a lawyer’s notes or perhaps an unsigned will. The relevant section of WESA is section 58.

Still, my view is that in most circumstances, the lawyer’s notes or a draft will is not likely to be given effect without some further evidence that the lawyer’s client intended those notes or document to operate as her will. I caution that the case law is in the early stages of development in British Columbia, and each case is decided on its own peculiar facts.

I will refer to two cases, one in British Columbia, Re Bailey Estate, 2016 BCSC 1226, and the other in Manitoba, Timm v. Rudolph, 2016 MBQB 123 (CanLII). Manitoba has a provision similar to section 58 of WESA, and British Columbia courts have followed the leading Manitoba cases on giving effect to non-compliant documents.

In Re Bailey Estate, Jann Bailey met with her lawyer on May 24, 2013, and gave her instructions for a new will, which included naming her husband, Alan Quinn as executor, and leaving property in Northern Ireland to him. The lawyer drafted a will and sent it to Ms. Bailey. They met again in July, 2014, Ms. Bailey having missed a number of scheduled meetings. The lawyer made further changes, and sent another draft to Ms. Bailey. They had a further meeting on October 20, 2014, in which Ms. Bailey provided some instructions for her personal possession, and sent instructions in respect of her remains by email on October 30. The lawyer sent a further draft will on December 14, 2014, and sent emails to Ms. Bailey following up on the draft will in March and May, 2015. Ms. Bailey told her investment advisor in June that she needed to make another appointment to complete her will. She died on October 9, 2015, without signing the will.

Madam Justice Hyslop found that the evidence was insufficient to satisfy the criteria required to give effect to the December, 2014, draft will, that it represented Ms. Bailey’s deliberate and final testamentary intentions. She wrote,

[50]         I conclude that the preparation and the anticipated execution of the December 2014 draft will was not of paramount importance to Ms. Bailey. She gave instructions at different times, she missed meetings with Ms. Cates [the lawyer], there was a fee dispute, she put off reading a previous draft, and she postponed making an appointment to see Ms. Cates to review the will despite reminders by Ms. Cates by email on March 16 and May 7 of 2015. Ms. Bailey did not tell Ms. Cates whether she wanted changes to the December 2014 draft will or whether she wanted to execute it.

[51]         On July 31, 2015, Ms. Cates’ spouse, Mr. Erlank [her investment advisor], met Ms. Bailey relating to investment matters. She told Mr. Erlank that she needed to set up an appointment “to complete” the December 2014 draft will. This statement, taken at its best, indicates that she wanted to replace her 2008 will with a new will. This also could mean that she had changes to make. She did not say to Mr. Erlank that she intended on signing the December 2014 draft will.

[52]         Between May of 2013 and December 8, 2014, Ms. Bailey did not indicate to anyone whether the December 2014 draft will set out her intentions. Despite Ms. Cates’ opinion that the will represented a deliberate and final expression of Ms. Bailey’s intentions, there is nothing that comes from Ms. Bailey either in word, deed or in writing as to whether the December 2014 draft will represented her final testamentary intentions.

[53]         For over two years, Ms. Bailey did not revoke her 2008 will by word or deed. Unlike Ms. Young [in Re Young Estate] , Ms. Beck [in Re Beck Estate] and Ms. Yaremkewich [in Re Yaremkewich Estate], Ms. Bailey left nothing, either electronic or on paper that the December 2014 draft will represented her final intentions. There simply was no expression by Ms. Bailey whether the December 2014 draft will was a final expression of her testamentary intentions.

The Manitoba case, Timm v. Rudolph, 2016 MBQB 123, appears to provide more compelling circumstances for giving effect to a non-compliant document as a will, but here again, the court did not find sufficient evidence to do so.

Following her diagnosis of terminal cancer, and while she was in palliative care, Shirley Timm-Rudolph, asked her daughter to arrange for a lawyer to take will instructions . Ms. Timm-Rudolph was married to Edwin Henry Rudolph, and she had a daughter from a previous relationship. Mr. Rudolph also had a daughter from a previous relationship.

On May 7, 2014, an articling student met with Ms. Timm-Rudolph and took instructions for a new will. The articling student made notes indicating that Ms. Timm-Rudolph wished to appoint her daughter as executor, and leave the residue of her estate to her on the condition that Mr. Rudolph would have the use of her half-interest in their cottage during his lifetime.

The articling student asked Ms. Timm-Rudolph to endorse the notes, and she signed the first page, and initialed the second. He then drafted a will and other estate-planning documents for her to sign, and arranged to return the following Monday. The articling student’s evidence was that he asked her to sign the notes in order to confirm her instructions, and avoid a potential fee dispute if she later said that the will he was going to draft did not reflect her instructions.

Ms. Timm-Rudolph passed away before the articling student’s attendance at the hospital for her to complete the will. Less than three months later, her husband died without a will. If the notes or the draft will could not be given effect, the result would be that Mr. Rudolph’s daughter would receive Ms. Timm-Rudolph’s estate which would pass to Mr. Rudolph, and then to his daughter.

Mr. Justice Dewar found that Ms. Timm-Rudolph did not intend the notes to operate as a will, and accordingly could not be admitted into probate as a will. His reasons are as follows:

[35]        Even a liberal reading of the evidence in this case does not permit the conclusion that Shirley intended that Mr. Haddad’s [the articling student’s] notes were to operate provisionally until the more formal will was prepared.  It is clear from the above excerpts that there certainly was no intention on the part of Mr. Haddad that his notes would ever be submitted to probate even after Shirley affixed her signature.  His purpose in obtaining the signature was to avoid a fee dispute.

[36]        Teena  [Ms. Timm-Rudolph’s daughter] argues that notwithstanding Mr. Haddad’s purpose, Shirley signed the document and therefore, it must be acknowledged that its contents contained her testamentary intention.  However, the George v. Daily decision requires more than the expression of how a person wishes her estate to be distributed.  That decision requires an intention on the part of the deceased person that the document could be usedas a testamentary document.  That intention simply cannot be inferred on a balance of probabilities in this case.

[37]        There is no doubt that Mr. Haddad’s notes were simply a record of instructions given preliminary to the preparation of a formal will.  The evidence before me indicated that Shirley did not consider her death to be imminent, and that she expected that Mr. Haddad would be returning with a formal will well within her expected lifetime.  But perhaps what is most compelling is that Mr. Haddad offered to assist her in making a holograph will (which would serve at least an interim purpose), and she declined that invitation.  Her signature and initial on the notes may well evidence the framework as to how she wished to leave her estate, but they do not signify that she intended that very document to be regarded as her will, even on an interim basis.  She felt that there was time for the formal will to be prepared and properly executed.  She declined the preparation of a holograph will which could have been prepared right there and then.  These facts, assessed objectively, do not permit the use of s. 23 of the [Manitoba Wills] Act to render Mr. Haddad’s notes a testamentary document admissible for probate.

[38]        It should also be remembered that the proposed will which Mr. Haddad intended to present to Shirley on the Monday contained provisions, albeit common provisions, that do not appear to have been discussed with her when the will instructions were taken.  The gifting of personalties, however reasonable a suggestion it may be, on the evidence before me was still only a suggestion, having not been reflected in Mr. Haddad’s notes.  Similarly, the power which was given to the trustees to encroach upon both capital and income for the children’s contingent bequest does not appear to have been discussed with Shirley.  Invariably, when lawyers actually sit down to draft a will, they realize that they have not discussed some of the details with the client.  Nonetheless, they prepare a draft which includes the details which they consider most reasonable, and present it to the client for the client’s consideration at the time of execution.  It would be presumptuous for a legal regime to encourage the probate of a will when the details of some gifts have never been discussed with the client.  Unless it is clear that a client intended that the lawyer’s notes would act as his/her will in the interim, as a general rule, it is most reasonable to conclude that even in the mind of the deceased, the notes of an attending lawyer reflect only a work in process, not the final product.

In both these two cases, the courts declined to give effect to the documents. I don’t suggest that a lawyer’s notes or an unsigned draft will may never be given effect, but something more than evidence that the documents reflected the client’s instructions may be required, such as evidence that the client thought that the notes or draft would operate as a will if he or she died before signing a new will.