Godfrey Estate and Holograph Wills

I love rain. The sound of it falling outside, watching the clouds glide over the mountains on the North Shore, and taking a brisk walk are some of the things I love most about living in the Lower Mainland. My wife thinks I’m crazy.

This week, we are looking at a case involving section 58 of the Wills, Estates, and Succession Act (WESA). You might have heard the story of Cecil George Harris, a farmer in Saskatchewan who on June 8, 1948, found himself pinned under his tractor. Realizing he would probably not survive, he scratched the words “In case I die in this mess I leave all to my wife. Cecil Geo Harris.” He died the next day.

While Harris’ will did not conform to the usual requirements of a will, as there were no witnesses and it was not dated, this “holographic will” was nevertheless found to be his last will and testament.

Section 58 of WESA likewise allows a petitioner to seek an order that a “document” of some sort (it may be electronic or physical) represents the final testamentary wishes of a deceased individual, even if that document does not comply with the usual requirements that a will be signed and dated before two witnesses.

This can, unsurprisingly, lead to complex legal challenges. A recent decision, Godfrey Estate (Re), 2024 BCSC 1493 illustrates this. The claim involved a deceased individual who, in 2002, created a handwritten will naming his wife as the executor and sole beneficiary. However, following his wife's death in 2015, questions arose about his intentions for updating his will as he transitioned into a long-term care facility in 2021.

In that year, the petitioner stated that the deceased expressed had expressed to him a desire to amend his will, leaving most of his estate to the petitioner. Acting on this wish, the petitioner engaged a notary who assessed the deceased's capacity to draft a new will, an enduring power of attorney, and a representation agreement. The notary prepared draft documents and sent them to the petitioner for review. While the petitioner suggested minor typographical corrections, there was no further communication from either party regarding finalizing the will.
There was no evidence that the deceased had actually reviewed the documents.
Nevertheless, the petitioner sought to have the unsigned versions of these draft documents declared to be testamentary documents.

Applications such as these are heavily dependent on evidence. While a document may not be signed, for example, the deceased may have sent an email to the lawyer preparing it stating something like, “I have reviewed these documents and approve them.” Alternatively, the deceased might have a handwritten document which is not witnessed, but they make clear to everyone in the family that the document is meant to represent their last will and testament. In this case, the lack of evidence was fatal. The court dismissed the petition, ruling that there was insufficient evidence to prove the draft will was delivered to the deceased in a manner that would fulfill the evidentiary threshold to establish that the deceased had confirmed that the prepared documents did indeed reflect his final wishes.

The case serves as a reminder of the importance of evidence in estate planning. Some clients, for example, who don’t have time to make a will before they go on a trip, will nevertheless write something by hand and send it to their lawyer stating something like, “These are my last wishes.” There is never a guarantee a court will accept anything other than a will that is signed, dated, and witnessed by two witnesses, but taking these extra steps might be the difference between a document being accepted or rejected.