Vancouver Lawyers What Makes A Will – Part 2

In Part 1 of this Vancouver Lawyers What Makes A Will series, we considered the requirements as set out in the Wills Estates and Succession Act with respect to how to make a valid will under s. 37. In the recent decision of

Litke Estate (Re), 2017 BCSC 1079, the Honourable Mr. Justice N. Brown heard an application from a person named as an executor in a will-like document that did not comply with the formal requirements set out in s. 37 of WESA.


The document was written by hand and titled “My Will and Testament”. The document was not signed by any witnesses and the Court made the following observations about the document:


[14]        There are no indicia of frailty in the handwriting. I find it noteworthy the will-like letter was inserted inside a self-help guide. The maker of the will-like document called it her Last Will and Testament.


[15]        There is no place for a witness to sign. The document exhibits a logical     structure with some real property disposed of in one part, charitable dispositions made in another, personal items in another part. She referred to one bank account shared with “Sharon.”


Mr. Justice Brown went on to review a number of decisions in British Columbia which have considered this issue, and made the observation that analysis under s. 58 of WESA is heavily fact-based. The Court then made the following determinations:


[43]        I find the writing in the will – like document dated December 21, 2009 is the handwriting of the deceased, Anne Litke, and is a valid document. Her signature was not witnessed by two persons. The document therefore does not satisfy the formal requirements for a valid will.


[44]        Ms. Litke died at age 94, on August 13, 2016, about seven years after the December 21, 2009 date on the will-like document. There is no evidence she was in ill health at the time. But she was about 84 years old; an age when one could reasonably expect a person to put their minds to their final testamentary intentions. There is no indication of undue influence or that she was other than of sound mind at the time.


[45]        As mentioned above, her handwriting was firm, legible, well formed, and attractive; some care apparently taken, not a scribbling of random thoughts.


[46]        She appointed two executors, her daughter and her daughter’s husband to act as her advisory helper, not attorneys, which suggests she was thinking in final testamentary         terms, not about her personal care needs. Choosing Mr. Chang to assist made sense because Mr. Chang is an accountant.

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