BC Will Dispute: Can a Handwritten Will be Valid?

The effectiveness of a handwritten will is a common BC will dispute. When can an unsigned handwritten document be an effective will or alteration of an earlier will? In a very recent BC will dispute, Skopyk Estate, 2017 BCSC, the court was asked whether an undated handwritten document pinned to a bulletin board inside the deceased’s apartment could replace or alter his formal will. In determining that the document was in fact an embodiment of the deceased’s testamentary intentions sufficient to alter his formal will and thus the disposition of the assets of his estate,  the court provided a concise summary of the legal principles that apply to handwritten wills and curing deficiencies.

Avoiding a BC will dispute: Requirements for a valid will

Section 37(1) of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 (“WESA”) provides that for a will to be valid, it 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.

Subsection 37(2)(a) provides that a will that does not comply with subsection (1) is invalid unless the court orders it to be effective as a will under s. 58.

The courts can cure deficiencies in BC will disputes 

Section 58 of WESA  authorizes the court to order that a document that does not comply with the requirements of WESA be fully effective as though it had been made in compliance with those requirements. To make such an order, the court must be satisfied that the document represents the testamentary intentions of the deceased. In Skopyk Estate, Madam Justice Forth succinctly stated the applicable legal principles:

[19]      The Court of Appeal has interpreted s. 58 to require that the document must be “a deliberate or fixed and final expression of intention” as to the disposal of property upon death: see Hadley Estate (Re), 2017 BCCA 311 at para. 36 [Hadley]. The factors relevant to the determination of whether a document represents such an expression of intention are context specific: Re Lane Estate, 2015 BCSC 2162 at para. 33. Extrinsic evidence of testamentary intent is admissible on the inquiry as to whether a non-compliant document embodies a deceased’s intent. This may well include extrinsic evidence of events that occurred before, when and after the document was created: Hadley, at para. 40.

In a previous post, I analyzed the decision in Hadley Estate (Re), a case in which a handwritten journal entry was not given effect as a valid will. Follow the link for a discussion of “testamentary formalities” and more on the validity of handwritten wills.

BC will dispute: The facts in Skopyk Estate

Skopyk Estate was a BC will dispute that came before the courts pursuant to s. 58 of WESA. The nieces of the deceased brought the petition to determine whether an unsigned handwritten document represented the deceased’s intentions to replace or alter his Last Will and Testament dated November 16, 1995 (the “1995 Will”).

The deceased, Russell Skopyk, died on July 16, 2017. Prior to his death, and while in hospital after suffering a heart attack, the deceased told one of his nieces that he was working on his will and that his wishes were different than those in the 1995 Will. After his death, another of his nieces found an undated handwritten document pinned to a bulletin board on the inside of the front door of the deceased’s apartment. The document was not signed by any witnesses nor was it signed at the end by the deceased, yet it purported to change the distribution of the residue of his estate.

Issue for determination in the Skopyk Estate matter

In this case, the document clearly did not conform with the formal requirements for the validity of a will as required in s. 37 of WESA (or the formal requirements for the alteration of a will set out in s. 54). Therefore the key question was whether the document represented a deliberate or fixed and final expression of intention as to the disposal of the deceased’s property upon death. There were several details pertaining to the document itself that supported a finding that it did represent such an expression of intention. For example:

• It was pinned to a bulletin board hanging on the door in the deceased’s apartment where it could be easily found;
• The document clearly directed a division of the residue of the estate to certain named persons and in certain specific shares, with language that mirrored the language of the 1995 Will;
• The distribution set out in the document was rational on its face (g., it removed the deceased’s sister from the list of beneficiaries – this was consistent with the changed circumstances, as his sister had passed away since the making of the 1995 Will);
• Although the document was not dated, there was reference at the top to the deceased’s will dated November 16, 1995; and
• The handwriting was reasonably similar to handwriting in a letter written by the deceased which was entered into evidence.

There were also extrinsic circumstances that supported a finding that the document was a deliberate or fixed and final expression of intention as to the disposal of the deceased’s property upon death, chief of which was evidence of the deceased’s niece. The evidence supported that when facing a serious health risk, the deceased on two occasions expressed to his niece his intention to change the distribution of his property upon death from what he had intended in 1995.

There were some extrinsic circumstances that did not support a finding of true intention. For example, one of the nieces deposed that she found other items on the bulletin board where the document was pinned, including a “to do” list, which did not mention contacting a lawyer to update the 1995 Will. However, upon weighing all of the evidence, Madam Justice Forth was satisfied that the document represented an authentic and deliberate expression of the deceased’s wishes as to the disposition of his property upon his death, and ordered it effective as an alteration of the 1995 Will.

Take home point on BC will disputes involving handwritten wills

A handwritten will can be effective if the court is satisfied that the document is a deliberate or fixed and final expression of the deceased’s intention as to the disposal of property upon death. Here are some of my tips for avoiding common pitfalls that may lead to BC will disputes after the testator pass away.