November 4, 2013

Courts are sometimes asked to determine if a “testamentary-like” document is a will.  In British Columbia, an executor brought an action to prove in solemn form that a questionnaire that the testator (“Ms. Garnett”) filled out and signed before two witnesses shortly before her death was a will that could be submitted for probate.

Ms. Garnett was in palliative care when she instructed her friends to consult a lawyer on her behalf to update her will.  The lawyer provided her friends with a detailed questionnaire for Ms. Garnett to fill out to assist with the preparation of her will.  Ms. Garnett’s friends (her executors) filled out the questionnaire as she directed them to do so.  When her health worsened, Ms. Garnett signed the questionnaire before her two friends who also signed as witnesses.  Along with the questionnaire, Ms. Garnett created a document she referred to as the “Pension Trust” outlining how the funds in her pension trust were to be distributed.  This document was also signed before the two witnesses at the time the questionnaire was executed.

The 2008 documents (the questionnaire and the pension trust beneficiary list) had a number of problems, for example, there was no vesting clause nor a revocation clause.  In addition to these deficiencies, there was no residue clause.  (Though, in the questionnaire section about the residue of the estate, Mr. Garnett wrote that she had provided her executors with direction.)

However, the court went on to find that the 2008 documents were Ms. Garnett’s last will and testament.  The 2008 documents were executed in accordance with section 4 of British Columbia’s Wills Act (similar to section 4 of the Succession Law Reform Act).

The questionnaire and pension trust beneficiary list were duly executed, properly witnessed, and evidence indicated that Ms. Garnett had capacity to execute both documents.  The court found that the pension trust beneficiary list met the requirements of an inter vivos trust.

Unfortunately, Ms. Garnett’s two friends who witnessed the will were also beneficiaries of her estate.  Neither they nor their spouses can take under the will and they lost their entitlement to their bequests.

Thanks for reading.