Writing a separate document to change or add to a Will

By Doug Carroll | September 23 2015 09:34AM
At issue

For many people, the execution of a Will is a solemn and rare occasion, with the document promptly packed away in some safe location to await its eventual application. 

Others may have a more dynamic view of Will execution, expecting and even planning periodic or frequent additions or amendments. Those in a terminal medical condition may at times become especially active in reviewing their estate intentions.  

When actions are taken with the benefit of professional guidance, it is highly unlikely that the authenticity or interpretation of such documents will come into question. However, when a person acts without involvement of a professional – and perhaps with no-one else involved at all – uncertainty can arise.  

While codicils are accepted in all provinces, writings that fall short of that are less dependable. Ontario generally requires formal execution to give testamentary effect, while most of the other provinces explicitly empower courts to review and rule on documents that do not meet the formalities required for Wills.

Use of a codicil

Whereas a newly executed Will revokes all prior Wills (absent a clear statement to the contrary within it), a codicil adds to or amends the prior Will but otherwise leaves it in force. The Codicil will make explicit reference to the original Will, and in terms of process the execution requirements are exactly the same as applies to Wills.

British Columbia Wills, Estates and Succession Act, s.58

With WESA coming into force in 2014, BC moved away from its former ‘strict compliance’ requirements for creating, altering, or revoking a will.  

Section 58 is what is commonly called a curative provision. It allows a court the discretion to accept or ‘cure’ a document or writing as a valid testamentary statement despite that it does not meet formal execution requirements. 

Estate of Young, 2015 BCSC 182

Sharone Young was 69 years old, living alone in North Vancouver. She had been in declining health for a number of years, dealing with cancer and the aftermath of a stroke.  She died in her home on July 10, 2014.

Ms. Young had a validly executed Will from 2009 in which she named Canada Trust as her executor. After Ms. Young’s death, two documents were found on her dining room table: a signed document dated June 17, 2013 and an unsigned document dated October 15, 2013. Both documents addressed the gift or disposal of furniture and personal effects to certain people, with the October document being more general and adding some priority of choice among some of those people.

Evidence was also received that Ms. Young had lunch with her neighbour on June 17, 2013, and provided to her a copy of the document of that date.

The judge outlined the legal framework for analysis, which of course centered on the application of WESA s. 58.  With no case law yet in BC, she considered the similarly worded Manitoba provisions, though even there most of the case law pre-dated the most recent amendments. Still, she summarized from those cases the two principle issues to address: 

1) Is the document authentic?, and

2) Does it reflect testamentary intention?

With respect to the June document, the judge viewed the signature as Ms. Young’s conscious signal of her knowledge and approval of its contents. That was supported by having shared an exact copy with the neighbour and conspicuously leaving the original on the dining room table where it would be easily found. All this led to the conclusion that it was both authentic and expressed her testamentary intentions.

The judge was not as persuaded with the October document. As mentioned, it was unsigned, was never shared or mentioned to anyone so far as the evidence showed, and appears to have been no more than a letter expressing non-binding wishes.

Practice points
  1. Per my usual comment, the best route to certainty is for a person as testator to follow formal processes, generally with the assistance of a capable professional. 
  2. At a minimum, an offered document will be questioned as to its authenticity and whether it shows testamentary intention. 
  3. To repeat, Ontario has a more formalistic regime, while most of the other provinces allow greater court discretion. Still, there remains a range of approaches even at that discretionary end. An executor should obtain legal advice specific to the deceased’s province to be certain whether a particular document may affect the estate.