Vancouver Estate Litigation: Handwritten Wills

Can a handwritten will be valid? In Hadley Estate (Re), 2016 BCSC 765 the court was asked to decide whether a handwritten journal entry described as a “last will” could replace an earlier will that was prepared with the help of a lawyer.

The will prepared by a lawyer

The will-maker in this case was a 93 year old woman named Ms. Hadley. In 2008 she met with a lawyer who prepared a formal will which left all of her $1.3 million estate to her three nieces.

The handwritten “will”

On September 1, 2014, after a dizzy spell that made her fear she was dying, Ms. Hadley made an entry in her diary that she titled her “last will”. It stated that she wanted all of her estate to go to two male friends she met in 2008 and only one of the nieces who was to benefit under the 2008 will. She initialed each page in the journal and also signed the end of the journal entry, but no one witnessed her signature. Ms. Hadley also wrote in the journal entry that she wanted to see a lawyer to make the changes in a new will. Ms. Hadley kept the journal entry a secret and the diary was not discovered until after her death in March 2015.

Did the handwritten will apply to the estate?

The male friends argued that the 2014 journal entry was a valid will, while the nieces argued that the will prepared in 2008 was the true reflection of Ms. Hadley’s wishes.

What makes a will valid?

To be a valid will, a document has to meet certain criteria, known as “testamentary formalities”. Handwritten wills or wills prepared without the assistance of a lawyer sometimes fail to meet the testamentary formalities. If a document does not meet those formalities, the court has discretion to order that the document is effective as a will, if there is evidence that the document is:

(1) authentic, and

(2) accurately represents the deceased’s wishes for their estate on death (known as “testamentary intentions”).

Legislation called the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 is what gives the court the power to recognize a document as a will even though it does not meet the formal requirements.

Was the handwritten will “authentic”?

Yes. In Ms. Hadley’s case, the court was satisfied that the September 1, 2014 journal entry was authentic as it was in Ms. Hadley’s handwriting. There were no issues of lack of capacity or undue influence when she made the journal entry. We discussed lack of capacity and undue influence in a previous post.

Did the handwritten will represent Ms. Hadley’s “testamentary intentions”?

No. After examining all of the circumstances, the court was not satisfied that the journal entry represented Ms. Hadley’s “testamentary intentions”. The journal entry was only a note to herself, not a deliberate and final expression of her wishes for her estate.

Facts important to the court’s decision

• Ms. Hadley did not tell anyone about the journal entry.
• Ms. Hadley knew what was involved in making a new will – in fact, she wrote in the journal that she wanted to see a lawyer to make the changes noted in the September 1, 2014 entry. She expected to communicate the changes to a lawyer, who would then prepare a new will for her to formalize the changes. She took steps to make an appointment with her lawyer, but it never happened.
• In the six months between writing the journal entry and her death in March 2015, Ms. Hadley told both her executor and her lawyer that she wanted to make changes to her 2008 will, but she did not say anything to either of them to the effect that she had already made a new will. This indicates that Ms. Hadley did not view the 2014 journal entry as a will.

Because the journal entry was not a deliberate and final expression of her wishes for her estate, it did not have “testamentary status”. In other words, it was not a valid will. The court ordered that the 2008 will applied to Ms. Hadley’s estate.

The bottom line on handwritten wills

While the evidence went against such a finding in Ms. Hadley’s case, under certain circumstances a handwritten document such as a journal entry can be given effect as a valid will. The handwritten document must be authentic and it must be a deliberate and final expression of the deceased’s “testamentary intentions”.