In a recent British Columbia decision, the court had to determine the validity of an unsigned will that had otherwise been fully drafted by the testator’s lawyer, but remained unexecuted upon her death.

Testator Dies Before Signing New Will

The testator had previously executed a will in 2014.

The testator had an appointment to go to her lawyer’s office to sign a new will on March 19, 2020. She had already given her instructions, reviewed the draft, and made a few minor clarifications. All that remained was to have the will signed and witnessed.

However, when the COVID-19 pandemic hit, she cancelled her appointment.

The testator subsequently died on July 20, 2020without having signed her new will.

Executor Asks Court to Determine Validity of Unsigned Will

In the testator’s 2014 will, she had named an executor. Her 2014 will also named her husband as her sole beneficiary, but he had since passed away. The will stipulated that if the husband predeceased her, the estate would go to a local hospital.

In contrast, in her unsigned 2020 will, the testator had named her nephew and niece-in-law as the executors and primary beneficiaries of her estate and removed mention of her husband and the hospital.

Thus, the executor named in the 2014 will applied to court seeking directions as to whether the testator’s unexecuted 2020 will represented her testamentary intention and should be ordered to be effective.

For their part, the nephew and niece-in-law submitted that the COVID-19 pandemic was the sole reason the testator did not execute the 2020 will. They sought an order that the unexecuted 2020 will was valid and represented the deliberate and final intention of the testator.

In addition, the local hospital named in the testator’s 2014 will submitted that the testator’s assets should go to the hospital pursuant to the 2014 will. Among its arguments, the hospital noted that the testator had not made any attempt to execute her will remotely, despite being permitted to do so by ministerial order as of May 19, 2020.

What Does the Law Say?

The court began by explaining that s. 37 of the British Columbia Wills, Estates and Succession Act (the “Act”) sets out three requirements that a will must meet to be valid:

37 (1) To be valid, a will must be

(a)  in writing,

(b)  signed at its end by the will-maker, or the signature at the end must be acknowledged by the will-maker as his or hers, in the presence of 2 or more witnesses present at the same time, and

(c)   signed by 2 or more of the witnesses in the presence of the will-maker.

The court noted that a will lacking any of these three requirements is deemed invalid. However, under s. 58 of the Act, a court may cure the deficiencies of the non-compliant will and order it to be effective. In essence, to declare a non-compliant will valid, the court must be satisfied that the will is both authentic and represents the testator’s fixed and final intentions regarding the disposal of their property upon death.

Court Declares Unsigned Will Valid

At the outset, the court held that the 2020 will was authentic.

As to whether the will represented the testator’s fixed and final intentions, the court first noted that the testator lived in a care home that prohibited its residents from leaving the home due to the COVID-19 pandemic and that was the main reason she had cancelled her appointment with the lawyer. The court further noted that the testator’s reasons for wanting to execute a new will in 2020 were substantial: her husband had passed away, her nephew and his wife had become a regular part of her life, her health had declined, she had sold the family home and subsequently her mobile home, and she had recently moved into a care home.

Ultimately, the court held that the 2020 unsigned will represented the testator’s final and fixed intentions, stating:

“The document and the context in which it is made has the hallmarks of fixed and final testamentary intention in that [it] bears the title of a will, it was made by a lawyer retained by [the testator] for that purpose, it revokes her prior wills, it directs how her remains are to be dealt with, it names executors and beneficiaries including an alternate beneficiary. The beneficiaries make sense in the context of [the testator]s relationships.”

Additionally, the court held that the four-month period between her appointment to execute the 2020 will and her death did not undermine her fixed and final intention to distribute her assets according to the unexecuted 2020 will.

In the result, the court therefore used its curative powers under the Act to order that the testator’s 2020 unsigned will was valid.

Get Help 

Protecting your assets and ensuring your family and other loved ones are provided for in the future is not something most people want to think about. However, effectively managing your wealth and protecting your spouse, children, and your estate is something that everyone should do at some point to ensure that your express wishes are carried out.

An effective estate plan goes far beyond just creating a will. You should also consider securing other important legal tools including powers of attorney (for personal care and for property), trusts (including Hansen trusts if you have disabled children or other dependants), as well as the designation of beneficiaries on life insurance policies, pensions, and other key documents.

The best way to guarantee that your wishes will be carried out exactly as you would like them to is to consult with an experienced estate lawyer. At Campbells LLP in Oakville, our wills lawyers have been helping clients with Wills and estates matter since 1999. We will meet with you to help you clarify your long-term objectives and will create a personalized, effective estate plan designed to meet those goals. As your family grows or changes, we will ensure your estate plan is amended as required to ensure it continues to protect your ultimate objective.

At Campbells LLP, we are proud of the strong, long-lasting relationships we build with the clients for whom we craft Wills and estate plans. With our help, you can ensure that your family and loved ones are taken care of, that your wealth is distributed as you wish, and that the risk of any potential litigation is minimized.  Our overall mission is to provide the right solution for each and every one of our clients. Contact us online or at (905) 828-2247 to learn more about our services.