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Peter B. Gorgopa, a business lawyer at SHK Law

Peter Gorgopa

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Authors: Peter Gorgopa

A TO-DO LIST CAN BE A WILL

The recent judgment of the BC Supreme Court in Re Hubschi Estate, 2019 BCSC 2040, held that the following note found on the deceased’s password-protected computer, under the heading “Budget for 2017,” is fully effective as his last will: 

Get a will made out at some point. A5 – way assets split for remaining brother and sisters. Greg, and at or Trevor as executor.

The court had the power to do so under the Wills, Estate and Succession Act.  It used to be that the creation of a will required strict compliance with specific signing and witnessing formalities, and that in the event of non-compliance, there would not be a valid and enforceable will.  This was changed in 2014 when WESA came into force.  That law confers a broad discretion on the court to order that a “record or document or writing or marking on a will or document” is fully effective, despite non-compliance with the specific signing and witnessing formalities.  The court’s power is intended to be curative, enabling the court to relieve against the consequences of non-compliance with the formalities of making a will, “so that the will-maker’s intentions are not defeated for no good reason.”  The courts have held that there is no minimum level of execution or other formality for a record or document to held to be a fully effective will.  And under WESA, “record” includes data stored on a computer.

The court’s curative power is intensely fact-sensitive.  The court must determine whether the non-compliant record is authentic, and if it is, whether it records “a deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death.”  The determinations are made on the basis of admissible evidence on a wide range of factors, including the deceased’s relationships with family and others, the circumstances of the deceased’s death, the deceased’s state of mind, and events before, when and after the non-compliant record was created.  

The court needed three days to hear the evidence and argument in the Hubschi case, notwithstanding that no one opposed the claim.  The deceased had died prematurely after a sudden brief illness.  He did not have a wife or children.  The non-compliant record was found on his computer, and he had accessed the record on the morning he died.  There was no prior will, and the non-compliant record did not disinherit any usual or expected beneficiaries.  A factor significant to the court was that, if the non-compliant record was not held to be a fully effective will, the deceased would have died without one, and his assets would be distributed to blood relatives as set out in WESA.

If the deceased’s assets were distributed to his blood relatives, however, they would be distributed not to the siblings referred to in the note, but to strangers in Switzerland.  This is because the deceased was not the natural brother of the siblings. The deceased’s only blood relatives were his birth-mother’s sister and niece in Switzerland, with whom he had no relationship.  At birth, the deceased had been given into the care of a children’s aid society by his birth-mother.  When the deceased was age three, he was placed in the home of foster parents, and was raised by them with their five natural children: a son named Gregory (referred to as “Greg” in the note), and four daughters, one of whom is named Annette (referred to as “and at” in the note).  While never being formally adopted by his foster parents, the deceased was treated equally as a sibling to each of their natural children, and when his foster mother died, she divided her estate equally among her six children, including the deceased.  The deceased’s close knit relationship with his foster family, and the lack of any relationship with his only blood relatives in Switzerland, were sufficient to satisfy the court that the non-compliant record embodied the deceased’s testamentary intentions on the day he died.

This case illustrates the importance of preserving and reviewing all documents and records of a deceased person, including those stored on a computer, particularly when there is no will.  It may be possible to rely on the notes of the deceased to discern the deceased’s intentions, and to avoid consequences that were obviously never intended. 

The best practice always is to properly prepare, sign and witness a formal will in compliance with all legal requirements, thereby avoiding altogether the delay, cost and uncertainty of the court relying on musings you leave on your computer or elsewhere to discern your final intentions for the disposal of your property on your death.

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