All About Estates

Charitable, but not that charitable

This blog was written by Paula Lester – Estate and Trust Consultant with Scotia Wealth Management

No one can question that Eleena Murray, who passed away in May 2017 at the age of 99, had charitable intentions. On the other hand, exactly how charitable her intentions were is at the heart of pending litigation between Eleena’s family and the SPCA.

Eleena’s Will, executed in 2003, leaves $440,000 in specific bequests to family members. The Will goes on to leave the entire residue of her estate to the SPCA. At the time of executing the Will, it is believed that Eleena’s estate was worth approximately double the amount of her specific bequests, which would have left her estate divided equally between family and the SPCA. However, by the time of Eleena’s death in May 2017, her estate was worth nearly $2 million, largely due to the significant increase in value of Eleena’s Vancouver residence. As the residual beneficiary, the SPCA stands to walk away with nearly $1.5 million from the final estate settlement.

That is, they may stand to walk away with this amount. According to Eleena’s extended family members, Eleena made a handwritten note on her 99th birthday, which altered her final testamentary wishes. Specifically, in the note, Eleena limited the SPCA’s bequest to $100,000, and left further bequests to family and friends. The note is apparently unsigned and undated, but two witnesses have sworn affidavits attesting to its veracity. It is on the basis of this note that Eleena’s family members are seeking a different distribution of her estate than that provided for in her 2003 Will.

To make matters more complicated, and unsurprisingly given Eleena’s advanced age at the time of writing this note, concerns have been raised regarding her capacity at that time.

In another province, such as Ontario, the legal answer to this issue may be clear. The note, unsigned, does not meet the test for formal validity of a testamentary document and therefore cannot in any way override a Will that has no errors or issues on its face. However, section 58 of the Wills, Estates and Succession Act in British Columbia does enable a court to follow the wishes of a record falling short of formal validity requirements where it is satisfied that the record represents:

(a)the testamentary intentions of a deceased person,

(b)the intention of a deceased person to revoke, alter or revive a will or testamentary disposition of the deceased person, or

(c)the intention of a deceased person to revoke, alter or revive a testamentary disposition contained in a document other than a will.

Ironically, the harder line taken in other provinces with respect to formal validity requirements for Wills and testamentary documents are in place specifically to avoid the present dispute with Eleena Murray’s estate. Given British Columbia’s more progressive approach, it is difficult to determine the outcome of this dispute. The matter is set to be heard in January 2021, and I for one am very interested in seeing how the court decides.

As someone who has moved from estate litigation to estate planning in my career, I live by the view that the best litigation is the one that’s avoided. Make sure to protect your own estate legacy by ensuring that you review your estate documents with an estate planner every 3-5 years, or after any large change in circumstances, and that any updates needed are made without delay and with the assistance of professional help.

For the original CBC article on the Murray Estate dispute visit here:

CBC – Vancouver family heading to court in 1.5MM inheritance fight with SPCA

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3 Comments

  1. Malcolm Burrows

    November 26, 2020 - 2:27 pm
    Reply

    Paula – Thanks for the great blog. This scenario involving estate donations to charity is increasingly common. End of life holograph notes that seemingly changes an existing will need to meet a high standard.

  2. Peggy Killeen

    November 26, 2020 - 4:52 pm
    Reply

    What’s concerning is the estate lawyer’s recommendation (in the linked CBC report) that he is advising his clients to make specific bequests to charity instead of residual ones, to avoid this situation.

  3. Gali Gelbart

    November 27, 2020 - 5:33 pm
    Reply

    This is a very interesting scenario, thank you. I am also looking forward to see how this is resolved.

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