For many people who own the house in which they live, their home is the most valuable asset in their estate. In many communities in Canada, house values have steadily increased over the last several years and particularly during the COVID-19 pandemic. This means that the value of an estate may be much greater at the time of the testator’s death than when the testator prepared and signed the last will and testament. This, in turn, may lead to unintended consequences with certain beneficiaries receiving more than the testator had in mind when the will was signed.

In Henderson v. Myler, 2021 BCSC 1649 (CanLII) (“Henderson“), the testatrix, Eleena Murray, was predeceased by her husband and had no children. She loved animals and had many family members and friends who cared about her. Ms. Murray owned her house in Kitsilano, B.C., and had a few other assets. In 2013, and at the age of 95, she decided to do a new will with a notary public, Ms. Deprez (the “2013 Will”). In 2013, her Kitsilano home had been assessed at $1,007,900.00 and the evidence suggested that the total value of her estate at that time was about $1.2 million. In her 2013 Will, Ms. Murray left a number of legacies to her extended family. The legacies totaled $440,000.00. The residue of her estate was left to one beneficiary: the BC Society for the Prevention of Cruelty to Animals (“BC SPCA”).

After Ms. Murray’s death, the 2013 Will was found in a lockbox with a handwritten note (the “Note”). The Note appeared to change the legacies in the 2013 Will. Some legacies were increased and others were removed. The gift to the BC SPCA was changed to a legacy of $100,000. The Note was silent with respect to the residue of the estate. If valid, the legacies in the Note would not exhaust Ms. Murray’s estate. The Note would have the effect of distributing the residue on an intestacy to Ms. Murray’s next-of-kin.

One of the issues in the litigation was whether Ms. Murray had knowledge and approval of the residuary gift in the 2013 Will. The plaintiffs alleged that Ms. Murray lacked knowledge and did not approve of the gift based, in part, on the lack of evidence that Ms. Murray and Ms. Deprez discussed the quantum of the residuary gift to the BC SPCA. The court reviewed the requirements for knowledge and approval and noted that a testator is not required to be aware of the assets in his estate to the precision of an accountant. General knowledge of the size of one’s estate is sufficient. The court found that Ms. Murray was aware of the assessed value of her home in 2013, the value of the rest of her assets, and that the legacies totaled $440,000. The court also found that Ms. Murray understood that the BC SPCA was receiving the “rest” of her estate, which was about $760,000 in 2013.

Another issue to be determined was, of course, whether the Note was a valid testamentary instrument. The Note did not comply with testamentary formalities. It was undated, unsigned, and not witnessed. The court went through an analysis of whether the deficiencies in the Note could be cured by the Wills, Estates and Succession Act, SBC 2009, c 13 (the “WESA”). The WESA is a BC statute which provides the court with broad discretion to find that a record, document or writing, or a marking on a will or document, represents the testamentary intentions of the deceased even though it is non-compliant with testamentary formalities. Citing George v. Daily (1997), 1997 CanLII 17825 (MB CA), 143 D.L.R. (4th) 273 (Man. C.A.), the court in Henderson confirmed that the writing or record in issue which purports to express testamentary intentions must be a “deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death” at the material time.

In determining whether the Note was a fixed and final expression of Ms. Murray’s intention to dispose of her estate, the court considered the other issues with the Note, including that there was no evidence of when Ms. Murray may have written it. The court found that it was likely written after the 2013 Will but before Ms. Murray moved to a long-term care home in March 2017. Two friends gave evidence about their discussion with Ms. Murray about the Note when they took her to a café for her 99^th birthday. Although the Note was reviewed and seemed to be confirmed by Ms. Murray, there were unanswered questions about the Note. Despite Ms. Murray agreeing with her friend that the gift to the SPCA was “way too much”, the effect of the Note meant that three family members, who were specifically excluded from the 2013 Will and the Note, would receive 75% of the residue of the estate.

The court observed that several factors did not support a finding that the Note represented Ms. Murray’s final intentions, including:

• the Note is not written on formal paper, but on a page from a note pad, suggesting an impermanence or informality rather than a fixed and final intention;
• there is no express revocation of Ms. Murray’s 2013 Will or expression of her intention to change or alter it;
• Murray did not tell anyone about the Note and did not provide a copy of it to her executrices;
• the Note is a list of certain names with amounts, and in some cases with no amounts. Another note, containing similar information, was found in the kitchen by Ms. Crawford and thrown out. The existence of several notes, with similar writing, suggests an ongoing thought process rather than a final testamentary intent; and
• the Note does not dispose of the entirety of Ms. Murray’s estate or specify what should happen to the residue of the estate.

While the court found that Ms. Murray had testamentary capacity in May 2017 to make the Note, it also found that the Note was not an expression of Ms. Murray’s fixed and final expression to dispose of her estate. The Note could not be cured by the WESA. It was neither an alteration nor codicil to the 2013 Will.

Ms. Murray died in 2017. That year her home in Kitsilano was assessed at $1,978,700. In only four short years, the value of her home had increased by almost $1 million. In the end, the gift to the BC SPCA, as sole residuary beneficiary, was about $1.4 million. Although there was evidence to suggest that Ms. Murray did not intend for the BC SPCA to receive such a sizable gift, the court in Henderson would not speculate on what Ms. Murray would have done with the residue of her estate, had she seen a professional to prepare a new will or codicil. Henderson provides an interesting analysis of knowledge and approval of a will, testamentary capacity, testamentary intentions, and assessing the evidence of witnesses who stand to benefit, or not, in the outcome of the litigation. It also serves as a reminder that determining a testator’s intentions after death has its limits.