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How B.C. Handles a Non-Compliant Will

Gregoire v Cordani, 2020 BCSC 276 (CanLII)

Unlike Ontario,[1] British Columbia does not have a statutory provision that validates holograph wills. The Wills, Estates and Succession Act[2] (the “WESA”) does, however, contain a more flexible provision at s. 58 that allows a court to validate a testamentary “record” that does not comply with the formal requirements for a will. Most provinces have this type of “substantial compliance” provision in some form; only Ontario and Newfoundland do not.

The recent decision of Gregoire v Cordani demonstrated how s. 58 of the WESA can validate an unwitnessed will, and what factors a B.C. court will look to in making this decision. This type of “substantial compliance” approach to evaluating a purported will may be preferable to Ontario’s stricter statute-based approach in a variety of difficult situations.

Section 58

    1. 58(1) defines a “record” as data that “is recorded or stored electronically,” “can be read by a person,” and “is capable of reproduction in a visible form.” Subsections 2 and 3 allow a court to order that “a record, document or writing or marking on a will or document” can be effective as a valid will, partial will, or revocation, alteration, or revival of a will. The court must be satisfied that the item in question represents the testamentary intentions of the deceased, or the deceased’s intention to revoke, alter, or revive a will or another testamentary disposition.

Unlike in Ontario, B.C., allows for an unwitnessed electronic document to potentially constitute a valid will. In the Cordani case, however, the document was handwritten. 

Background to the Decision

Jean-Claude Gregoire (“Gregoire”) and Nicola Cordani (“Cordani”) had spent several years in a romantic relationship. Gregoire represented himself as Cordani’s common-law spouse, the Norell J., found it unnecessary to determine on the s. 58 application whether the representation was legally correct.

Cordani had suffered from depression and anxiety, eventually becoming “manic and delusional,” and requiring hospitalization. She stopped communicating with her mother and two of her brothers, claiming that “they did not support her in the way she needed,” but maintained close relationships with Gregoire and a third brother (“Michael”).

In September of 2018, Cordani was found dead from an apparent suicide, with a handwritten note that represented itself as her will. Since no other testamentary instrument could be found, Cordani would have been intestate had this purported will not been valid. The note divided most of her assets between Gregoire and Michael, while specifically mentioning that her other two brothers “[got] nothing”. It was signed by Cordani, but not by any witnesses.

Factors Listed by Norell J.,

Norell J. first cited Hadley Estate (Re)[3] to establish the following principles:

  • The two issues on a s. 58 application are whether the document is authentic, and whether it represents the deceased’s testamentary intentions;
  • A testamentary intention is not mere the disposition of assets, but must be “a deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death”; and
  • A testamentary intention is not irrevocable, but must be “fixed and final at the material time,” which is most likely the time at which the document was created, but can be later.

To establish that the handwritten note expressed “fixed and final testamentary intentions,” Norell J. examined many factors:

  • The note stated that it was a will;
  • It asked specific named people to “please respect [Cordani’s] intentions,” which Norell J. took to be similar to naming executors;
  • It was written and signed by Cordani;
  • The circumstances of her death did not suggest that the lack of witnesses indicated an absence of testamentary intentions;
  • She appeared to have intended that it be found;
  • It was dated close to her death;
  • It made “specific bequests of major assets of her estate”;
  • It contained certain identifying information about those assets;
  • It “[conveyed] an air of finality”;
  • Where portions were scribbled out, they were small, and “not indicative of draft language, but rather a handwriting mistake or a change in how a sentence begins”;
  • It left nothing to the family members she had previously “cut out,” which was consistent with that earlier decision;
  • It was inconsistent with some of Cordani’s prior statements about her testamentary intentions, but not with others; and,
  • There were “no allegations of testamentary incapacity or undue influence”.

Conclusion

Although a handwritten holograph will is valid in Ontario, other types of testamentary records that do not comply with the strict formalities of due execution, simply cannot be valid wills. B.C.’s approach is admittedly more flexible.

[1] Succession Law Reform Act, RSO 1990, c S.26, at s. 6.

[2] Wills, Estates and Succession Act, SBC 2009, c 13.

[3] 2017 BCCA 311

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