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

Does an Adopted Child have Rights to their Birth Parent’s Estate?

According to section 60 of the Wills, Estates and Succession Act (WESA), if a Will-maker dies leaving a Will that does not make adequate provision for the Will-maker’s children, the Will-maker’s children may start a proceeding to vary the Will and have the Court order a more adequate, just, and equitable provision to be made out to them from the Will-maker’s estate.

What if you are an adopted child and you feel that your birth parent’s Will does not make adequate provision for you? Would you be able to vary the Will under section 60 of the WESA?

This question was considered in British Columbia Supreme Court case Boer v Mikaloff, 2017 BCSC 21. The Court ultimately decided that it would not be possible to vary the Will under section 60 of the WESA, considering section 37(1)(c) of the British Columbia Adoption Act, which states that birth parents cease to have any parental rights or obligations with respect to the adopted child. In this particular situation, the Plaintiff was not considered a child of his birth mother.

The Court also considered section 3(2)(a) of the WESA, which states that a child is not entitled to the estate of their pre-adoption parent except through the Will of that pre-adoption parent. This led the Court to the conclusion that a child is essentially in the same position as a non-family member when it comes to their entitlement in their birth parents’ Wills.

Taking both of these sections into account, the Court decided that an adopted child would not be able to take advantage of section 60 of the WESA since the child is technically no longer the child of their birth parent, and retains no rights to their birth parent’s estate other than what is specifically made out to them in their Will.

If you or a loved one are in need of advice regarding Wills and Estates or wish to have assistance in making a Will or challenge a Will, consult Vancouver and Burnaby Wills & Estates lawyer Andrew Rebane at Resolutions Law Corporation, Burnaby, British Columbia at andrew@resolutionslawcorp.com or 778-372-7107.

5 Reasons Why DIY Wills Are a Bad Idea

You won’t realize your mistakes until it’s too late
Making a do-it-yourself Will means you won’t have a legal professional looking over your Will, checking to see if it is up to standards and that it accurately reflects your wishes.

If you make a mistake anywhere in your Will or if your Will is inaccurate, incomplete, or imprecise in any way, no one will know until after you die when your Will undergoes the probate process in order to be validated.

By then, you will have no way to clarify or correct anything in your Will, and this may cause your loved ones a lot of unnecessary grief and hassle and even additional expenses.
You don’t know what you don’t know
Without a proper legal background, Wills can be complicated. Although you may have an idea of what you want to put in your Will, the truth is you may not know enough about the specific case law and legislation that you need to refer to when making a valid and accurate Will.
You risk neglecting the ‘what if’ scenarios
Simple Will kits usually do not cover all the different scenarios that could happen. What if your main beneficiary is involved in an accident at the same time as you? What if your Executor is no longer capable of performing the tasks? What if your chosen guardian for your children becomes unavailable? A lawyer can go through the ‘what if’ scenarios with you and ensure that everything is accounted for.
They cannot account for your unique needs
Every person has their own specific needs and wishes. A generic Will kit can’t fit everyone’s bills perfectly. If you have a specific wish that you want to include in your Will, you may not know exactly how to put it in there such that it will be carried out properly and without complications.
They are an additional hassle that’s not worth the ‘savings’
Although the cheap costs of a DIY Will may be very tempting, there are many hidden dangers that you may not realize. It will provide you a peace of mind going to a lawyer to have your Will done accurately than to do it yourself and risk making mistakes that will have costly and challenging consequences.

(Click here to find out what happens if you do not have a will)

If you or a loved one is in need of advice regarding Wills or wish to have assistance in making one, consult Vancouver and Burnaby Wills & Estates lawyer Andrew Rebane at Resolutions Law Corporation, Burnaby, British Columbia at andrew@resolutionslawcorp.com or 778-372-7107.