Tag: will

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

Can My Spouse Challenge My Decision to Exclude Him or Her from My Will?

In a prior post, it was discussed what may arise from a decision to exclude your children from your Will and so today’s topic will cover: What may arise from your decision to exclude your spouse?

Section 60 of the Wills Estates Succession Act (“WESA”) empowers a court to vary the terms of a Will that does not make adequate provision for the Will-maker’s spouse (including common law spouse) where such spouse makes an application to the court for a variation of the Will-maker’s Will. To quote:

S.60. Despite any law or enactment to the contrary, if a Will-maker dies leaving a Will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the Will-maker’s spouse or children, the court may, in a proceeding by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the Will-maker’s estate for the spouse or children.

The words “adequate”, “just” and “equitable” have been judicially considered by the Courts and have determined that the Will-maker’s Will must satisfy the Will-maker’s legal and moral obligations to the surviving spouse.

When determining what the Will-maker’s legal obligations are to the surviving spouse, the Courts will look to what the surviving spouse would have received if the parties had separated and then look to what the surviving spouse’s entitlement would be under the mean. BC courts have measured “adequate, just and equitable” by comparing what the surviving spouse received under the Will with what they would have been entitled to under the Family Law Act of British Columbia. This means in cases of long term marriages where assets were intermingled, the surviving spouse’s claim to a share of the Will-maker’s estate is stronger than those of a spouse who was married to the Will-maker for a short period of time and whose finances were separate from the Will-maker.

When determining what the Will-maker’s moral obligations are to the surviving spouse, the Court will consider whether the provisions of the Will-maker’s Will are within society’s reasonable expectations of what a judicious person would do in the circumstances by reference to contemporary community standards.

In light of the afore-going, you would think it would take a fairly unique set of facts for a Court to uphold a Will-maker’s decision to entirely exclude a long term spouse from being a beneficiary under the terms of the Will but the Courts have in fact done so where the parties, in a second marriage, maintained separate finances and the Will-maker make provision for the surviving spouse to live in the home for as long as the surviving spouse wanted.

Ultimately, the question of whether a Court will uphold the Will-maker’s decision to exclude or limit a spouse’s entitlement to the estate will depend on the specific facts surrounding the marriage of the parties and the provisions of the Will-maker’s Will.

If you or a loved one has been excluded from an estate of a spouse or parent, timely legal advice and representation can be had by contacting Vancouver/Burnaby inheritance and estate litigation law lawyer Andrew Rebane at Resolutions Law Corporation, andrew@resolutionslawcorp.com or 778-372-7107.