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Canada Judgment

Supreme Court of British Columbia

Hadley Estate (Re)

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01

Holding and result

The 2014 journal entry did not, on the balance of probabilities, represent a deliberate and final testamentary intention because contextual evidence (expressed intention to see a lawyer to formalize changes, contemporaneous notes seeking to make a new will, secrecy of the journal, absence of witnesses and no express revocation of the 2008 Will) showed the entry was personal notes rather than an operative will; therefore the 2008 Will governs and the 2014 document cannot be cured under s.58 WESA.

Court disposition

2008 Will governs the estate; 2014 journal entry does not have testamentary status and is not a testamentary disposition

Orders

  • The 2008 Will governs the estate of Eleanor Lena Hadley
  • The 2014 journal entry dated September 1, 2014 does not represent the testamentary intentions of Ms. Hadley and is not effective as a will
  • Letters Probate are to be issued in respect of the 2008 Will and The Canada Trust Company is confirmed as executor of the estate
  • If counsel cannot agree on costs they must take steps within 30 days to schedule a costs hearing and make submissions

02

Material facts

Parties

The Canada Trust Company

Applicant/administrator Counsel: John W. Bilawich

Eleanor Lena Hadley

Deceased

R. Bruce Macdonald

Beneficiary/interested Party Counsel: Sara Pedlow; Gillian Crouch

Daniel J. Pierce

Beneficiary/interested Party Counsel: Sara Pedlow; Gillian Crouch

Virginia Maziak

Beneficiary/interested Party Counsel: Kimberly A. Kuntz

Anita Berecz

Beneficiary/interested Party Counsel: Kimberly A. Kuntz

Grace Gagner

Beneficiary/interested Party Counsel: Kimberly A. Kuntz

Carol Fitzsimmons

Beneficiary/interested Party Counsel: Kimberly A. Kuntz

Amounts and remedies

  • Estate Gross Value: CAD 1,300,000

03

Procedural history

  1. Posture

    Estate Application Under Wills, Estates and Succession Act S.58 / Application for Determination of Which Document(s) Govern the Estate and for Directions as to Probate/administration

04

Questions and positions

Legal issues

Party arguments

Applicant
Canada Trust took a neutral position but identified factors supporting that the 2014 journal entry could represent testamentary intent: it is in the deceased's handwriting, dated, titled "This is my last Will", signed/initialed in places, made after an acute health episode, contains specific bequests to named individuals and was kept in safekeeping.
Respondent
Macdonald and Pierce argued the 2014 entry should govern; the Nieces argued the 2008 Will should govern, contending the 2014 entry was written in confusion, lacked witnesses, did not expressly revoke the 2008 Will, evidenced intent to see a lawyer to formalize changes, included inconsistent post-dated notes expressing intent to make a new will, was kept secret and therefore did not represent a final testamentary intention.

05

Court’s reasoning

  1. 01

    Wills, Estates and Succession Act, S.B.C. 2009, c.13, s.58

    Curative discretion to validate non-compliant documents as wills if they represent the deceased's testamentary intentions

  2. 02

    George v. Daily (Man. C.A.); summarized in Estate of Young, 2015 BCSC 182

    Testamentary intention requires a deliberate or fixed and final expression of how property is to be disposed of on death

  3. 03

    Estate of Young, 2015 BCSC 182; Yaremkewich Estate (Re), 2015 BCSC 1124

    Burden of proof is the balance of probabilities and the inquiry is intensely fact-sensitive; extrinsic evidence is admissible

06

Ratio, limits and disposition

Ratio decidendi

The 2014 journal entry did not, on the balance of probabilities, represent a deliberate and final testamentary intention because contextual evidence (expressed intention to see a lawyer to formalize changes, contemporaneous notes seeking to make a new will, secrecy of the journal, absence of witnesses and no express revocation of the 2008 Will) showed the entry was personal notes rather than an operative will; therefore the 2008 Will governs and the 2014 document cannot be cured under s.58 WESA.

Obiter and limits

  • Section 58 is a curative provision and its exercise is heavily fact-dependent
  • Extrinsic evidence such as surrounding communications, actions taken after making a document and the deceased's contemporaneous statements are admissible and relevant to determining finality of testamentary intent
  • The further a document departs from formal requirements the harder it is to find testamentary intent

Court disposition

2008 Will governs the estate; 2014 journal entry does not have testamentary status and is not a testamentary disposition

  • The 2008 Will governs the estate of Eleanor Lena Hadley
  • The 2014 journal entry dated September 1, 2014 does not represent the testamentary intentions of Ms. Hadley and is not effective as a will
  • Letters Probate are to be issued in respect of the 2008 Will and The Canada Trust Company is confirmed as executor of the estate
  • If counsel cannot agree on costs they must take steps within 30 days to schedule a costs hearing and make submissions

Source and reliance status

Supreme Court of British Columbia · 29 April 2016

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Authorities

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Hadley Estate (Re), 2016 BCSC 765

Case cited

Estate of Young, 2015 BCSC 182

Case cited

George v. Daily, 1997 (Man. C.A.) 143 D.L.R. (4th) 273

Case cited

Yaremkewich Estate (Re), 2015 BCSC 1124

Case cited

Wills, Estates and Succession Act, S.B.C. 2009, c.13, s.58

Legislation

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