Handwritten note does not override will, Canadian court finds

Eleena Murray died in 2017, leaving a 2013 will that left certain gifts to her extended family and the “residue” of the estate to British Columbia’s Society for the Prevention of Cruelty to Animals (SPCA). At the time of Murray’s death, this residue totalled CAD1.4 million.

Members of her extended family also produced a handwritten note, found with the will, supposedly increasing the amounts in Murray’s bequests to certain family members and removing other legacies. According to the claimants, this note would reduce the bequest to the SPCA to CAD100,000 and leave the residue of Murray’s estate to the other beneficiaries through intestacy.

The court had to consider if this note constituted a valid will or will codicil or, if not, it could be recognised as such under the curative powers of section 58 of the Wills, Estates and Succession Act (WESA). Citing previous case law, it concluded that it did not meet the formal requirements for a will and further ruled that it did not find the note to demonstrate the fixed and final testamentary intentions of Murray.

The judge noted that elements of the note were incompatible with the fact that the residue of Murray’s estate would pass through intestacy to certain family members if the 2013 will were to be overridden.

Further, it took Murray’s previous estate planning into account. Law firm Owen Bird notes that the fact that Murray “had demonstrated a pattern of obtaining advice from a legal professional concerning her estate planning, so she knew what a formal Will was and how one had to be executed” was of key importance to the court’s decision.

The court found that Murray would have had the testamentary capacity in 2017, and the legal understanding to properly execute the note as a codicil to her will. Accordingly, it refused to recognise the note as a valid will or valid codicil to the 2013 will.

Sources

• Owen Bird
• Disinherited blog
• Estate Law Canada
• BC Courts