Hadley Estate (Re)
- Citation
- 2016 BCSC 765
- Status
- Judgment
- Jurisdiction
- Canada
- Court
- Supreme Court of British Columbia
- Decision
- 29 April 2016
- 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
- Language
- English
More details
- Court
- Supreme Court of British Columbia
- Decision
- 29 April 2016
- 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
- Language
- English
On this page
Professional case brief
Research organized from the available case record
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. BilawichEleanor Lena Hadley
DeceasedR. Bruce Macdonald
Beneficiary/interested Party Counsel: Sara Pedlow; Gillian CrouchDaniel J. Pierce
Beneficiary/interested Party Counsel: Sara Pedlow; Gillian CrouchVirginia Maziak
Beneficiary/interested Party Counsel: Kimberly A. KuntzAnita Berecz
Beneficiary/interested Party Counsel: Kimberly A. KuntzGrace Gagner
Beneficiary/interested Party Counsel: Kimberly A. KuntzCarol Fitzsimmons
Beneficiary/interested Party Counsel: Kimberly A. KuntzAmounts and remedies
- Estate Gross Value: CAD 1,300,000
03
Procedural history
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
- 01
Whether the September 1, 2014 journal entry (the 2014 Will) represents the deceased's testamentary intentions under s.58 WESA
- 02
Whether the 2014 Will revoked or altered the 2008 Will
- 03
Whether the 2014 Will can be cured and admitted to probate
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
Legal principles
- 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
- 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
- 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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