Javier Castro knew he was dying – he had refused a
life-saving blood transfusion on religious grounds – and
talked about making a will when his two brothers visited him in
hospital. They had no pen and paper to hand, so wrote out a will on
a tablet device, which Castro and the brothers signed on the
tablet. An Ohio county probate judge held that the will was valid:
under state law, a will must be a written document that is signed
and witnessed (Estate of Castro, Lorain County Probate
Court, 27 June 2013).
The judge noted that a will carved in stone with a hammer and
chisel would also be valid, but that rather misses the point; the
law (Canadian and English law, anyway) has long recognised the
validity of holograph wills (instruments entirely in the hand of
the testator), the famous example being that of the Saskatchewan
farmer who scratched a brief but valid will on the fender of his
tractor before it crushed him to death (there is no requirement for
a holograph will to be witnessed under Saskatchewan law). The real
issue is whether an electronic document can meet the writing and
attestation requirements necessary for a valid will. While a
contract can be formed electronically, electronic documents
legislation expressly does not apply to wills, presumably on the
grounds that electronic wills could be subject to alteration by
third parties (beneficiary with access to granny's laptop adds
some zeroes here and removes them elsewhere). Under British
Columbia's Wills, Estates and Succession Act (in force
in March 2014), a judge will have the discretion to recognise any
'record [defined to include an electronic record], document or
writing' as a valid testamentary disposition (s 58). Bets on
when the first tweet is admitted to probate?
At common-law, where a property is purchased with one person's money and title is put in the name of another, there is a presumption that the title holder holds title in trust for the person who contributed the money.
McInnes Cooper's Marc-Antoine Chiasson and Romain Viel represented the successful party in the application for leave to appeal to the Supreme Court, and Marc-Antoine represented her throughout her challenge of Mr. McCorkill's bequest.
The Ontario Court of Appeal recently overturned an Application Judge's decision to set aside a will on public policy grounds, emphasizing the principle that the scope for judicial interference with a testator's wishes is limited.
On March 31, 2014, BC's new Wills, Estates and Succession Act1 ("WESA") will come into force. WESA introduces new protections for beneficiaries of estates that are in danger of being disputed or deemed ineffective by a court.
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