In Bishop Estate v. Sheardown, 2021 BCSC 1571, Supreme Court of British Columbia considered whether to admit to an unexecuted will to probate, after the deceased cancelled her appointment with the lawyer to execute her will as a result of the COVID-19 pandemic.The deceased had an executed will, which named her late husband as the sole beneficiary. In the alternative, the deceased named the Kelowna General Hospital Foundation.
The deceased gave instructions to a lawyer to draft a new will. She reviewed the new will, and she made some minor alterations to the document. Under the new, unsigned will, the deceased named her nephew and niece-in-law as the primary beneficiaries.
Under s. 58 of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 (“WESA”), the Supreme Court of British Columbia can cure a defective will if the court determines that it is (i) authentic and (ii) that it represents the testamentary intentions of a deceased person (para 11).
Although the parties did not contest the authenticity of the unexecuted 2020 will, Justice Matthews accepted the evidence of the deceased’s solicitor who prepared the unexecuted 2020 will that it was prepared based on the deceased’s instructions (para 24).
Matthews J. considered two dimensions to whether the unexecuted 2020 will represented the deceased’s testamentary intentions: (i) did the departure from formal testamentary requirements considering the context and contents of the alleged substantial invalidity make it impossible to establish testamentary intention; and (ii) did the failure to execute the unexecuted 2020 will from when it was ready for execution until the deceased’s death nullifies any intention the deceased may have had when she made her appointment to execute it in March 2020 (para 30).
On the first dimension, Matthews J. considered the context for the unexecuted 2020 will was drafted as follows. In the five and a half years following the making of the June 2014 will, the deceased’s husband, whom she had named as her primary executor and beneficiary, had passed away, her nephew and his wife had moved to Kamloops and 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 (para 33).
It was relevant to the Court that the unexecuted 2020 will made considerable sense in the circumstances (para 44). Matthews J. found that the unexecuted 2020 will represented the deceased’s fixed and final intention as of March 17, 2020, when she called to book an appointment to execute it (para 46).
The Court also concluded that the deceased’s failure to execute the will either remotely pursuant to the May 19, 2020 order or on her own did not undermine her testamentary intentions (para 59).