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Will unsigned because of COVID deemed valid

Tuesday, October 05, 2021 @ 1:24 PM | By Polly Storey


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Polly Storey
The recent decision from the Supreme Court of British Columbia, Bishop Estate v. Sheardown, 2021 BCSC 1571, serves as one of the first, though likely not the last, examples of how a willmaker’s testamentary intentions may be given effect where COVID-19 has interfered with their ability to make a will.

Bishop Estate involved the draft of a will of Marilyn Bishop, a woman in her 70s who cancelled an in-person appointment to execute her will following the declaration of the COVID-19 pandemic in March of 2020. As she died without ever having signed her will, Justice Sharon Matthews considered whether s. 58 of the Wills, Estates and Succession Act (WESA) could be invoked to order that the will was fully effective, notwithstanding its non-compliance with the statutory requirements.

Section 58 of WESA

Before the WESA came into force in 2014, British Columbia had been a “strict compliance” jurisdiction, meaning that for a will to be valid, it needed to comply strictly with the execution and attestation formalities prescribed by legislation.

Under s. 58 of WESA, however, the court can “cure” a will that does not comply with those formal requirements. To do so, the court must be satisfied as to the document’s authenticity, and that the document represents the willmaker’s deliberate or fixed and final intentions regarding disposal of property on death.

Bishop was a resident of Kamloops. She was predeceased by her husband and had no children. She did, however, have a close relationship with her nephew and niece-in-law, the Sheardowns, particularly in the years prior to her death. She resided in a care facility, and suffered from dermatomyositis, a rare autoimmune disorder.

Bishop’s will

Bishop had a will dated June 27, 2014, (the “2014 will”). Her husband was the primary executor and beneficiary under the 2014 will, and Kelowna General Hospital (“KGH”) was the alternate beneficiary. Following a health scare in December of 2019, however, Bishop contacted the firm that had drafted her 2014 will to prepare a new one.

On Feb. 3, 2020, Bishop met with a lawyer and instructed him to make a new will naming the Sheardowns as her executors. She provided the residue to the Sheardowns, and removed the bequest to KGH, which she said had been her husband’s idea.

The solicitor prepared the draft will and sent it to Bishop for review on Feb. 12, 2020. On March 3, 2020, Bishop delivered a handwritten note to the lawyer responding to questions he had left in the draft will. He prepared a final draft (the “2020 will”) and asked his assistant to contact Bishop regarding next steps for its execution. On March 17, 2020, Bishop contacted the lawyer’s office and made an appointment for March 20, 2020, to sign the 2020 will.

COVID-19

On March 19, 2020, however, she cancelled her appointment. By that time, Bishop’s care home prohibited residents from leaving other than for medical appointments and did not allow visitors. In addition, Bishop was very concerned about COVID-19 because of her autoimmune disorder.

While the lawyer offered to mail the 2020 will to her for signature, and although remote execution regulations were passed by the legislature, Bishop died over the summer of 2020 without having signed the will. As it was never signed or witnessed, it did not meet the statutory requirements to be a valid will.

2014 or 2020?

After Bishop’s death, the alternate executor under the 2014 will applied to court for directions regarding whether 2020 will was valid. He applied under s. 58 of WESA for a determination regarding whether the 2020 will represented Bishop’s testamentary intentions such that it could be ordered effective. The Sheardowns took the position that the 2020 will was valid and said that the only reason why Bishop had not signed it was the COVID-19 pandemic. KGH, however, sought that Bishop’s estate be distributed under the 2014 will, contending that the evidence did not establish that her intentions in the 2020 will were fixed and final.

Bishop’s wishes

As there was no dispute regarding the authenticity of the 2020 will, Justice Matthews focused on whether it represented Bishop’s fixed and final intentions, ultimately answering the question in the affirmative.

Justice Matthews reviewed the circumstances of the 2020 will’s creation. She noted that since the 2014 will was made, Bishop’s husband, who had been her primary executor and beneficiary, had passed away, the Sheardowns had moved to Kamloops and become a regular part of her life, her health had declined, and she had moved away from Kelowna into a care facility in Kamloops. In these circumstances, Bishop contacted the same firm that prepared the 2014 will to discuss her affairs. She met with a lawyer, reviewed her existing 2014 will, and provided specific instructions for a new one. She then reviewed the draft 2020 will and made some revisions in response to the lawyer’s questions. When asked if she wanted to review it again, she instead made an appointment to sign the 2020 will.

Notwithstanding this evidence, KGH submitted that Bishop’s failure to execute the 2020 will by some alternate means, or even to sign it herself, indicated a lack of the requisite testamentary intentions.

Justice Matthews rejected this submission.The judge noted Bishop’s pattern of meeting with the lawyer in person to give instructions and provide comments. The pandemic had shut down all interpersonal interactions other than for essential reasons, and her care facility was locked down. As a result, Bishop’s usual means of interacting was not available to her. Further, it was not known how long the restrictions would last. Justice Matthews observed that at the time, official communications discussed the pandemic in short time frames, urging the public to comply with restrictions that were “not forever” but were “for now” (para. 56). The judge concluded that Bishop was likely waiting to execute the 2020 will in person, and her failure to sign it did not give rise to an inference that she had changed her mind. “[B]ut for the exceptional circumstances of the pandemic, Ms. Bishop would have executed the will on March 20, 2020 … and was waiting for circumstances to change so that she could do so” (para. 60). Justice Matthews exercised the court’s power under s. 58 of the WESA to order the 2020 will to be fully effective.

Precedent for unprecedented times

Bishop Estate represents one of the first reported decisions in British Columbia where the court has considered the impact of COVID-19 restrictions on an individual’s testamentary intentions. Here, Bishop’s cancellation of her in-person appointment to sign her will, and failure to otherwise execute it, during the pandemic was not fatal to her intentions in the circumstances. Bishop’s case may therefore serve as a precedent for navigating one of the many ways that the unprecedented COVID-19 pandemic continues to impact our lives and legal affairs.

Polly Storey is an associate practising in the areas of estates and trusts and elder law at Clark Wilson LLP.

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