Is A Note On The Back Of A Napkin Valid To Alter A Will?
Can Napkin Notes Alter a Will in BC?
Making a Valid Will in BC
Prior to the introduction of the Wills, Estates and Succession Act (“WESA”), British Columbia was considered to be a “strict compliance” jurisdiction with respect to the laws governing changing, revoking or altering wills.
One of the biggest changes introduced be WESA is found in section 58, which enables a court to cure technical deficiencies in wills and to order that a record or document represents a deceased’s testamentary intentions. This issue was recently considered in the decision of Lane Estate, 2015 BCSC 2162, where the Court ultimately determined that series of notes written on scrap paper did not constitute valid testamentary documents and thus did not alter the will of the Deceased.
Making a “Fixed & Final Expression of Intention”
After reviewing the reasoning from a leading decision in Manitoba (a jurisdiction which has had a similar provision in place for much longer), as well as another recent British Columbia decision, the Court in Lane Estate, made the following comments:
 In Estate of Young at para. 35, Madam Justice Dickson, after citing George, held that on an application under s. 58 of WESA:
… The key question is whether the document records a deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death. A deliberate or fixed and final intention is not the equivalent of an irrevocable intention, given that a will, by its nature, is revocable until the death of its maker. Rather, the intention must be fixed and final at the material time, which will vary depending on the circumstances.
 The factors relevant to the determination of whether a document that does not comply with testamentary formalities embodies the deceased’s testamentary intention are context specific. They may include the presence of the deceased’s signature, the deceased’s handwriting, witness signatures, revocation of previous wills, funeral arrangements, specific bequests, and the title of the document: Estate of Young at para. 36.
Meeting the Legal Requirements, a Context-Specific Question
It is clear from the above, that asking a BC Court to determine whether a document that does not meet the formal requirements for a will but may express testamentary intent is a context-specific question.
Our Related Posts on BC Wills Variation:
- How Long do you Have to Contest a Will in BC?
- Moral Obligations Threshold Test – Challenging a Will in BC
- Sibling Inequality in Wills: A Justifiable Reason
- Allowing “Hearsay” Evidence in B.C. Wills Variation
- Homosexuality not a Factor for Disinheriting in BC
- Leaving Estate Only to Sons in Will: Equality & Law in BC Wills Variation