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The “Back of a Napkin” Will

By Wills & Estates Team (posts)

A New Challenge for Estate Advisors

When BC’s estate laws changed in 2014, one of the more interesting changes was the addition of what is often called a “curative power”. This refers to the power for the Court to “cure” a Will that is not formally valid, but still appears to represent the intention of the will-maker. This is section 58 of the Wills, Estates and Succession Act.

Since the change, there have been several Court decisions that have allowed us to understand better the advantages and disadvantages of the curative proviso – and provided some practical advice to avoid the disadvantages.

The greatest advantage of the curative proviso is that it can avoid technical defects that can – in some cases, absurdly – make a Will invalid.

An example of such a technical defect would be where one of the two required witnesses has briefly left the room at the time that the will-maker signs the Will, but where it is otherwise abundantly clear that the Will represents the will-maker’s intentions. Under the old rules, this Will would be invalid, but the curative proviso allows the Court to “cure it” and make it valid.

On the other hand, the main disadvantage of the curative proviso is that it tends to create more litigation (and therefore more expense) around Wills and quasi-Will documents.

Some of the “curative proviso” cases that our firm has been involved with include:

  1. the deceased left, scattered around her home, notes concerning what would happen to her assets after her death, some of which were written on the back of receipts and grocery lists;
  2. the deceased was advised by a friend to get a Will done because of the deceased’s risky behaviour, and the deceased then jotted down two notes on a piece of paper and had the friend witness his signature;
  3. the deceased made handwritten changes to an existing lawyer-drawn Will, including a gift to a step-child who had recently come back into the deceased’s life, but did not have the alterations properly witnessed.

In our estates/probate practice we have seen many instances where the new law has increased legal expenses for estates. The new laws cause the following (costly) problem: sometimes there is no way to avoid the expensive court hearing, even if the parties agree on whether the new document should be cured. This is because a person applying for probate (i.e., an executor) must sign an affidavit stating that he/she has found no other/subsequent will or any document that might be construed to be a Will. If the executor cannot swear to this, then they have to bring to the Court’s attention any document that plausibly could be considered to represent the will-maker’s intention. The Court may then refuse to grant probate until there is a hearing on whether the document should be “cured”.

To reduce or minimize the potential for unnecessary litigation and related expenses to arise after a client’s death, we recommend practices such as the following:

  1. Advise clients not to write down draft estate planning ideas – and if they do, they should mark the document accordingly – “DRAFT ONLY” or “NON BINDING THOUGHTS” for instance;
  2. On the other hand, if the client wants the document to be taken as his/her Will, then the client should sign it and mark it accordingly – for instance, “I consider this to be my last Will” – and take immediate steps to have it properly witnessed.
  3. If a client discusses estate planning with a professional advisor, the advisor should be sure to take good notes and to record the client’s intention – has the client decided that this is what she/he wants for sure, or are these just ideas that the client intends to consider further at a later date?

If there is one standout lesson to be gleaned from the case law and the hassles we have seen in our Estates/Probate practice, it is that clients should use estate lawyers to draft and update their Wills. A lawyer-drawn Will, that is properly witnessed, avoids costly headaches that a quasi-Will otherwise creates.

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