In Bishop Estate v. Sheardown, 2021 BCSC 1571, the Supreme Court of British Columbia gave effect to a Will the testator had failed to execute before her death.

Facts:

Marilyn Bishop died in British Columbia in the summer of 2020 at the age of 76. She had a prior Will signed in 2014, which named her husband as her executor and primary beneficiary, and in the event he predeceased her, the Kelowna General Hospital Foundation was to benefit. By 2016, Ms. Bishop’s husband had died, and she had grown close to her nephew and his wife, who helped care for Ms. Bishop as she suffered from an autoimmune disease.

In 2019, Ms. Bishop moved into an assist living facility. She instructed her lawyer to prepare a new Will which named her nephew and niece-in-law as her executors and primary beneficiaries, and removed the bequest to the hospital, which had been her late husband’s idea.

The lawyer prepared the draft of the Will in accordance with Ms. Bishop’s instructions and provided her with a draft for her comment and to fill in certain blanks. On March 3, 2020, Ms. Bishop delivered a handwritten note to her lawyer which included, among other things, the instructions “no charities at this time”.

The lawyer prepared a final draft of the Will, and Ms. Bishop was scheduled to attend the lawyer’s office on March 20, 2020 to execute the Will. However, due to the COVID-19 lockdown, Ms. Bishop cancelled her appointment, as her care home only permitted residents to leave for medical appointments.

Unfortunately, the appointment was never rebooked and Ms. Bishop died four months later without having signed her Will. The alternate executor of her 2014 Will applied to the court for directions with respect to whether the unsigned Will represented Ms. Bishop’s testamentary intentions and should be ordered effective.

Analysis:

Under s.58 of British Columbia’s Wills, Estates and Succession Act (“WESA”), the Court has the power to cure Wills that do not comply with the formal requirements for making a Will under s.37 of WESA (to be valid, a Will must be in writing, signed at its end by the testator in the presence of a least two witnesses who are present at the same time, and two of the witnesses must have signed the Will in the presence of the testator). Where the formal execution requirements have not been met, under s.58 of WESA, the Court can order such a record, document, or writing to be fully effective, provided two elements are satisfied: the document must be authentic, and the document must represent the testator’s deliberate or fixed and final intentions regarding the disposal of her property on death.

In this case, the authenticity of the unsigned Will was not disputed, such that the Court’s analysis focused on whether the document represented Ms. Bishop’s fixed and final intentions. Ms. Bishop had arranged for the Will to be prepared by the same lawyer who drafted her 2014 Will. Her nephew and his wife had moved to the city where she lived and become close to her as her health declined. Ms. Bishop saw her lawyer with the specific purpose of discussing her estate plans, and gave specific instructions. She reviewed a draft of the Will and directly responded to the lawyer’s questions, but did not suggest any changes or new bequests.

In considering the evidence, the Court rejected the hospital’s argument that Ms. Bishop’s failure to sign the Will in the four months between cancelling her appointment and her death meant she had changed her mind about the Will. Although the lawyer had offered to mail the Will to her for execution, Ms. Bishop’s dealings with the lawyer’s firm had always been in person, and the COVID-19 restrictions in place were not intended to be permanent. There was no evidence that Ms. Bishop was made aware of the option to execute the Will remotely, or that she had been advised to destroy her 2014 Will to ensure it was no longer valid.

The Court accepted that Ms. Bishop had been very concerned about COVID-19 due to her autoimmune disorder, and saw only her niece-in-law as her designated visitor during the lockdown. There was no evidence that Ms. Bishop had changed her mind and there was a rational explanation for her delay in executing the Will. As such, the Court declared the unsigned Will to be effective.

Take Away:

Although a decision from British Columbia, this case shows the extent to which a Court was willing to give effect to a Will left unsigned due to the extraordinary circumstances caused by the COVID-19 lockdown, where the evidence otherwise clearly demonstrated the testator’s deliberate, fixed and final intentions with respect to the document in question. The curative provisions of s.21.1 of Ontario’s Succession Law Reform Act come into effect on January 1, 2022. It remains to be seen how the Court will consider the validity of an unsigned Will under the new provisions.