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Seniors’ Series: Jurisdictional Differences in Estate Planning – The Curative Provision

Jacobson Estate (Re) https://www.canlii.org/en/bc/bcsc/doc/2020/2020bcsc1280/2020bcsc1280.html

This series has so far often focused on the vulnerability of seniors in the COVID-19 pandemic, and certain tools that could potentially be useful in addressing this issue. One pattern that has emerged is that, while the pandemic represents a new danger, its existence has also exacerbated many of the vulnerabilities that already existed. As clients continue to adjust their testamentary plans, it may be worthwhile to take another look at how different statutory provisions in different provinces can disrupt or protect a person’s estate plan. The recent British Columbia decision in Jacobson Estate provides one such example.

The facts in this case are fairly straightforward. Helen Eileen Jacobson (the “Deceased”) had been in a marriage-like relationship with Naida Hyde (“Hyde”) for over 30 years, before they separated in 2017. The Deceased had previously executed a will (the “2014 Will”) that would leave her entire estate to Hyde.

The Deceased retained a lawyer to prepare various documents, including a power of attorney and a new will. The Deceased’s friend (“Beauchamp”), who would be appointed as her attorney, attended the initial meeting with the lawyer, and encouraged the Deceased to leave her estate to charities instead of to Hyde.

The lawyer was concerned that Beauchamp was influencing the Deceased to make a new will, and chose to prepare the other documents first. The Deceased later gave the lawyer instructions to revoke the power of attorney, and not to prepare a new will. She explained that she still wished to leave everything to Hyde under the 2014 Will, and that this had “always” been her intention. The Deceased confirmed this intention to the lawyer “at each following meeting”.

The lawyer was a satisfied at the initial meeting, and for several months thereafter, that the Deceased was capable of making testamentary decisions. Over time, however, the Deceased showed signs of dementia. A capacity assessment in April, 2018 found that she was no longer capable of managing her affairs. The lawyer continued to work with the Deceased’s new attorney, who was not Beauchamp, on a separation agreement with Hyde. The new attorney instructed the lawyer to exclude a provision that would prohibit Hyde from seeking any share of the Deceased’s estate, as the attorney also understood it to be the Deceased’s long-standing intention that Hyde would inherit.

Neither the Deceased nor her lawyer was aware of s. 56 of the Wills, Estates and Succession Act,[1] (the “WESA”), which causes a testamentary gift to the testator’s spouse to be revoked if they have ceased to be spouses. The definition of “spouse” in the WESA includes people in a marriage-like relationship.

S. 58 of the WESA allows a court to order that “a record or document or writing or marking on a will” represents a deceased person’s testamentary intentions, and is fully effective as that person’s will, even if it is not a technically valid will. In this case, the court used this provision to rule that the 2014 Will was valid, finding that it represented a longstanding, consistent, and extremely well-established testamentary intention. The Deceased had “repeatedly and unequivocally” stated this intention to others, except perhaps in the brief period where she appeared to be influenced by Beauchamp, and had begun to do so well before she had become incapable. As explained by the court:

The deceased did not comply with any of [certain formalities in the WESA], but she did unequivocally manifest her intentions repeatedly in statements to her solicitor and power of attorney. The purpose of s. 58 is to ensure that discernible testamentary intentions are not thwarted “for no good reason” by a failure to comply with statutory requirements. Declaring the terms set out in the Will, in their entirety, effective as the deceased’s will as at the time of her death accomplishes exactly that.

How would a similar situation have played out in Ontario? On the same facts, the 2014 Will would not have been revoked by the separation, because the definition of a “spouse” in s. 1 of the Succession Law Reform Act[2] (the “SLRA”) only includes people are married to each other, or “have together entered into a marriage that is voidable or void, in good faith on the part of a person relying on this clause to assert any right”.[3] But what if the Deceased and Hyde had been married, and later divorced, in Ontario?

Unlike the WESA, the SLRA does not contain a curative provision. If a person’s Ontario will does not comply with the formalities of the SLRA, including if it has been revoked by a marriage or divorce, then there is no mechanism by which it can be given legal effect. WEL Partners has written before on this difference between the approaches of Ontario and BC, and whether Ontario should adopt some sort of curative provision. While it is important to respect the possibility that a testator’s intentions can change at any time, even if they have previously been consistent, the risk that a strictly formalistic system causes some testators’ intentions to be ignored is clear.

Estate planning, especially late in life, is a complex matter where many things can go wrong. The Jacobson Estate case is a reminder that, among other things, a solicitor must carefully consider:

  • Whether an elderly client is capable of making testamentary decisions, recognizing that capacity is decision-specific and can fluctuate over time;
  • Whether the client is being influenced by others, including any people on whom is dependent for any reason, and whether the client’s stated wishes are truly the wishes of the client and not someone else; and
  • What specific provisions exist in the applicable provincial statute that could affect the client’s plans, as demonstrated in Jacobson Estate, where the client and lawyer did not know that the 2014 Will had technically been revoked.

[1] SBS 2009, c 13

[2] RSO 1990, c S.26

[3] Family Law Act, RSO 1990, c F.3; this statute’s definition of “spouse” is adopted by the relevant portion of the SLRA

This paper is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This paper is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.

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