In Bishop Estate v. Sheardown, 2021 BCSC 1571, the Supreme Court of British Columbia considered whether it could validate a will that was unexecuted because of the COVID-19 pandemic.
Ms. Bishop died on July 20, 2020.
She had executed a will in 2014 that left her estate to the Kelowna General Hospital Foundation. Then on February 3, 2020, Ms. Bishop met with a lawyer to draft a new will.
The new will removed the gift to Kelowna General Hospital Foundation and gave most of her estate to her nephew Robert Sheardown and his wife Deborah. She explained to her lawyer that the gift to the hospital was her late husband's idea and that, having no children herself, she wanted to give most of the estate to her nephew and niece-in-law. The lawyer had no concerns about her mental capacity.
The lawyer drafted a new will on February 12, 2020 and sent it to Ms. Bishop for review. Ms. Bishop sent a handwritten note back to the lawyer on March 3, 2020 with some minor revisions, mostly filling in blanks in the draft will. The lawyer prepared the final documents. On March 17, 2020, Ms. Bishop booked an appointment to visit her lawyer's office and sign on the 20th.
Two days later, however, Ms. Bishop called to cancel the appointment. Her care was prohibiting non-medical appointments and did not allow visitors, due to COVID-19. When Ms. Bishop died in July, she was still waiting for these restrictions to lift.
Can the court cure the deficiencies of the 2020 draft will and give it full effect?
Section 37(1) of British Columbia's Wills, Estates and Succession Act, SBC 2009, c. 3 ("WESA") says that a will must be in writing and signed by the testator and two witnesses to be valid.
Section 58 of WESA gives courts the power to cure the deficiencies and give effect to an improperly executed will, if the document is authentic and represents the testator's testamentary intentions. See Estate of Young, 2015 BCSC 182; Hadley Estate (Re), 2017 BCCA 311.
The parties did not dispute that the unexecuted 2020 will is authentic. There was ample evidence from Ms. Bishop's lawyer that the will was prepared based on her instructions.
Matthews J. found that the unexecuted 2020 will reflected Ms. Bishop's fixed and final intentions. It was clear that the will was complete. Her requested revisions were simply filling in blanks.
And Ms. Bishop's failure to execute the will is explainable given the sudden and strict restrictions put in place due to the pandemic. The fact that she did not make use of remote execution procedures is not evidence that the unexecuted will no longer reflected her testamentary intentions. She preferred in-person meetings and was waiting for the pandemic restrictions to lift when she died.
Having established that the document was authentic and reflected Ms. Bishop's final intentions, the court used its curative power from s. 58 of the WESA to give effect to the unexecuted 2020 will.
This case highlights that in jurisdictions where defects of execution can be cured (which now includes Ontario), courts have considerable power to ensure that the final intentions of testators are carried out.
Would the result in Re: Lacroix Estate, 2021 ONSC 2929 have been different if Ontario had an equivalent to WESA s. 58 at the time?