In Shopyk Estate, 2017 BCSC 2335, the validity of handwritten notes was brought to question during the estate litigation. A Deceased made a Will in 1995 which gave different shares to each of his two siblings and three nieces and nephews as residual beneficiaries. The Deceased became ill and prior to his death, told family members that he was working on a new Will that was different than his 1995 Will. Shortly after the Deceased’s death, one of his niece’s found a Document pinned to a bulletin board on the inside of the front door of the Deceased’s apartment. The Document was handwritten, undated and not signed by the Deceased. The Document referred to the 1995 Will and purported to change the residual beneficiaries to give equal shares to one sibling, the spouse of his other sibling who had since died, and the same three nieces and nephews referred to in the 1995 Will.
Section 37(1) of the Wills, Estates and Succession Act (“WESA”) provides that in order for a Will to be valid it must be:
- in writing,
- 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 of more witnesses present at the same time, and
- signed by the 2 or more witnesses in the presence of the will-maker.
Section 58 of WESA permits the Court to order that a document that does not comply with section 37(1) to be effective as though it had been made in compliance with that section if it is satisfied that the document represents the testamentary intentions of the Deceased.
In this case, the Court found that while the Document did not comply with section 37(1) of the WESA, it did represent the Deceased’s deliberate or fixed and final expression of intention as to the disposal of the Deceased’s property upon death based on the following factors:
- The Document was pinned to a bulletin board in the Deceased’s residence where it could be easily found.
- The distribution in the Document was rationale given one of his sisters, who had been included in the 1995 Will, had since died.
- The Document directs a division of the residue of the estate to certain named persons in certain shares, with language that mirrors the language of the 1995 Will.
- Although not signed or witnessed, the word “witness” was written near the bottom of the Document.
- Although not dated, there was reference at the top of the Document to the Deceased’s 1995 Will.
- The handwriting of the Document was reasonably similar to handwriting in a letter entered into evidence which was dated December 10, 1995 and signed by the Deceased, which letter was found in a drawer in the Deceased’s apartment next to the 1995 Will, and
- He told a niece on a number of occasions that he was working on a new Will that was different than the 1995 Will.
The Court ordered the Document effective as an alteration of the 1995 Will, and the Deceased’s estate was distributed accordingly.