Can a Suicide Note also Operate as a Will?

Can a written note authored by someone prior to committing suicide also serve as the person’s Last Will? This question was addressed in a recent Supreme Court decision in which the deceased’s handwritten suicide note was discovered in her vehicle after her body was found washed up on the banks of the Fraser River.

The handwritten note referred to it being a Will, asking the deceased’s wishes be respected and then directing that her contents and a specific bank account be given to her common law husband, that a brother receive her RRSP, and her other siblings “get nothing”.

S.37 of the Wills, Estates and Succession Act (“WESA”) sets out the formal requirements for the validity of a Will:

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.

(2) A will that does not comply with subsection (1) is invalid unless

(a) the court orders it to be effective as a will under section 58 [court order curing deficiencies],
(b) it is a will recognized as valid under section 80 [validity of wills made in accordance with other laws], or
(c) it is valid under another provision of this Act.

S.58 of WESA empowers the court to order that a document that does not strictly conform with S.37 has the same legal effect as a Will.

58 (1) In this section, “record” includes data that

                (a) is recorded or stored electronically,
                (b) can be read by a person, and
                (c) is capable of reproduction in a visible form.

(2) On application, the court may make an order under subsection (3) if the court determines that a record, document or writing or marking on a will or document represents

(a) the testamentary intentions of a deceased person,
(b) the intention of a deceased person to revoke, alter or revive a will or testamentary disposition of the deceased person, or
(c) the intention of a deceased person to revoke, alter or revive a testamentary disposition contained in a document other than a will.

(3) Even though the making, revocation, alteration or revival of a will does not comply with this Act, the court may, as the circumstances require, order that a record or document or writing or marking on a will or document be fully effective as though it had been made

        (a) as the will or part of the will of the deceased person,
        (b) as a revocation, alteration or revival of a will of the deceased person, or
        (c) as the testamentary intention of the deceased person.

(4) If an alteration to a will makes a word or provision illegible and the court is satisfied that the alteration was not made in accordance with this Act, the court may reinstate the original word or provision if there is evidence to establish what the original word or provision was.

When considering, pursuant to S.58 of WESA whether a document that does not confirm with S.37 of WESA is legally enforceable as a Will, the Court must be satisfied that the document is authentic and secondly that the document reflects the deceased’s deliberate and final expression as to disposal of his/her property.

In the case at hand, the Court readily found that the note was authentic as it was in the handwriting of the Deceased and then proceeded to consider whether the note represented the fixed and final intention of the deceased as to the disposal of the property upon death. The Court found that the note did represent the fixed and final intention of the deceased for the following reasons:

(a) The deceased refers to the note as being her Will;
(b) The deceased asks that her common law and sibling respect her wishes, leading the court to find this as a direction for them to act on his behalf;
(c) The note is in the deceased’s handwriting and signed by her, indicating her approval of the content of the note;
(d) The note was made in contemplation of death;
(e) The note was found near where the deceased’s body was found indicating an intention that the note be found;
(f) The note makes bequests of significant assets of the deceased’s estate;
(g) The note provides identifying information about the deceased’s assets; and
(h) The note’s language conveys finality.

As a result of the afore-going reasons, the Court found the note to have the legal effect as being the Will of the deceased.

While the circumstances of this case are particularly tragic, people do often leave documents that evidence what they desire to occur with their property upon death that do not conform with S.37 of WESA and in these cases, it is strongly recommended to obtain legal advice in a timely manner to ensure that the deceased’s intentions are honoured.

If you discover such a note in your loved one’s possessions after death, timely legal advice and representation can be had by contacting Vancouver/Burnaby probate, inheritance and estate litigation law lawyer Andrew Rebane at Resolutions Law Corporation, andrew@resolutionslawcorp.com or 778-372-7107

My ex died, do I still have to pay child support?

Sometimes, the areas of Family Law and Estate Law intersect and one relatively recent Supreme Court of British Columbia answers the question of what happens to the payor’s obligations to pay child support when the payee dies.

This situation was addressed in Carpentier v. British Columbia (Director of Family Maintenance Enforcement) 2017 BCSC 250 (“Carpentier”) where the payor was in arrears of child support at the time the payee died. The payor argued that not only did the obligation to pay child support going forward terminate upon the death of the payee but all child support arrears were cancelled as well.

The issues before the Court were two fold:

Did the payor have to continue paying child support upon the death of the payee; and
Did the payor have to pay child support arrears owing as of the payee’s date of death.

The Court determined that a child support claim is a claim personal to the payee and as such a child support claim does not continue after the death of the payee, and, correspondingly, the payor’s obligation to pay child support accruing beyond the date of death of the payee is extinguished. However, when it came to the issue of child support arrears, the Court took the position that such arrears constituted a judgment for that amount of child support that was in arrears as of the payee’s date of death.

In other words, if the parent of your child dies your ongoing obligation to pay child support ends but you will be obligated to pay to that person’s estate any amounts of child support owing as of the date of that parent’s death.

If you are being asked to pay or are seeking to claim child support in a situation where the opposing party has died, consult Vancouver & Burnaby Family Law and Child Support lawyer Andrew Rebane at Resolutions Law Corporation, Burnaby, British Columbia andrew@resolutionslawcorp.com or 778-372-7107.

BEING MERE FRIENDS WITH BENEFITS does not mean someone will be liable to pay spousal support to a “friend”.

Spousal support

A person can claim spousal support under either the Divorce Act or the Family Law Act.

Under the Divorce Act, a claim for spousal support can only be successfully pursued if the parties were legally married. Mere living together does not establish a claim under the Divorce Act.

Under the Family Law Act, a claimant can pursue a claim for spousal support if it can be shown that (a) the parties were legally married OR the parties resided together in a “marriage like relationship” for a minimum period of 2 years.

What will make up a “marriage like relationship” is a question of fact and the courts will look to a variety of factors to determine if the parties lived together in a “marriage like relationship” such as:

Did the parties live under the same roof;
What were the sleeping arrangements as between the parties;
Did anyone else live under the same roof;
What was the parties’ respective behaviour towards preparation of meals, laundry, shopping, household chores – in other words did the parties perform any of these chores for the benefit of the other;
What were the financial arrangements between the parties regarding shelter and household expenses;
Did the parties file tax returns as single people or as common law;
Were the parties Drivers’ Licences at the same address;
Did the parties participate together in community or social activities and did they hold themselves out as being a couple at these events; and
Did the parties have sexual relations and if so, were such relations conducted with the expectation of fidelity.

The list above is by no means exhaustive as the courts will consider other facts if deemed relevant but what is clear is that the mere existence of sexual relations between a couple does not automatically give rise to an obligation to pay spousal support as the length of the relationship and the facts surrounding the relationship will determine if spousal support will be payable.

If you or a loved one is in a relationship and you wonder if an entitlement or an obligation to pay spousal support has arisen, timely legal advice and representation can be had by contacting Vancouver/Burnaby family law lawyer Andrew Rebane at Resolutions Law Corporation, andrew@resolutionslawcorp.com or 778-372-7107