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In a recent British Columbia decision that made headlines, a court upheld a testator’s wish to leave over $1.4 million to the British Columbia’s Society for the Prevention of Cruelty to Animals (“SPCA”), a non-profit animal welfare organization.

Testator Leaves Residue of Estate to SPCA in 2013 Will

The testator died in 2017 at the age of 99. 

The testator had prepared a will in 2013, in which she made specific bequests, varying between $40,000 and $60,000 to several family members. The will specified that the residue of the estate would then go to the SPCA. 

At the time of her death, the testator’s estate was estimated to be worth approximately $1.85 million.

This meant that, under the 2013 will, the SPCA was set to receive approximately $1.4 million from the estate.

Family Contests 2013 Will

Following her death, the testator’s family contested the 2013 will.

They claimed that they had found a handwritten note alongside her 2013 will in the testator’s home lockbox. The note appeared to increase the specific amounts payable to certain of the family members named and deleted gifts to others. More importantly, it changed the gift to the SPCA from the remainder of the residue to $100,000. This meant that if the note prevailed over the 2013 will, the SPCA would only get $100,000, with the residue of the estate going to the named family members.

The family members applied to court, claiming that the note had been finalized at a meeting with the testator’s close friend in the presence of another friend at a meeting in 2017 and should prevail.  

Court Examines Validity of 2017 Note

First, the court examined the circumstances surrounding the execution of the 2013 will, which it found to be valid.

Turning to the handwritten note, the court first observed that it was not dated and there was no evidence on which to determine when it had been prepared. Additionally, the court found that it was untitled, unsigned, and not witnessed. The court further stated:

“The Note appears to have markings on it made by different people as they are in different ink. At least half of the names on it were in [the testator]’s handwriting. It appears likely that [the testator] wrote all of the names,… [but it] is not clear who crossed out some of the names on the Note… It was also not clear who increased the amount of the gifts from the amounts in the 2013 Will.”

Thus, the court held that the note did not meet the legal requirements for a valid testamentary instrument.

Court Upholds 2013 Will

The court further refused to use its discretion to uphold the note as a valid testamentary instrument. To do so, the court would have had to find that the note represented the testator’s fixed and final intention to change the 2013 will, which the court declined to do. 

In addition to finding that the note would dispose of her estate in ways she could not have intended, the court further stated:

“The circumstances surrounding the Note do not suggest a fixed and final intention on [the testator]’s part. In 2010, [the testator] met with a lawyer to prepare the 2010 Will. In 2013, she met with a notary to prepare the 2013 Will… She clearly knew she had to “go in” to make changes to her will.

[The testator]’s pattern of behaviour was to see a legal professional in order to change a will. [The testator] understood the formal process of attending at a professional’s office and going through the process of instructing the professional and formally executing a valid will.” 

In the result, the court therefore refused to use its discretion to declare the note as a valid codicil to the 2013 will.

As such, the 2013 will was upheld as valid and the residue of the testator’s estate would go the SPCA.

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At Bader Law, we have considerable experience providing insight and legal guidance on the estate planning process, and working with Estate Trustees and beneficiaries throughout the entire probate process. We work with clients throughout Mississauga and the Greater Toronto Area on simple and highly complex estate planning and probate matters.

The Mississauga will and estate lawyers at Bader Law represent individuals, families and business owners with comprehensive estate planning needs in Mississauga and throughout the Greater Toronto Area. We advise clients on best practices in both simple and complex estate matters to ensure they have a plan in place to protect their interests and minimize their estate tax obligations. We also represent estate trustees and beneficiaries in various probate matters. Contact us online or at (289) 652-9092 to learn how we can help.