Canada: The Importance Of Keeping Your Will Current

In a recent decision of the BC Supreme Court, Heathfield v. St. Jacques, 2015 BCSC 505, Madam Justice Ballance considered a claim to vary a will that was made when the personal circumstances of the will-maker were vastly different than those in existence at the time of his death.  Although the Court may vary a will, this case serves as an important reminder to update your will regularly.

On November 13, 2011, Michael Heathfield died suddenly at the age of 53, leaving an estate worth approximately 1.2 million dollars.  Approximately 7 years before his death, Mr. Heathfield executed a will (the "Will") naming the defendant, Ms. St. Jacques, as the sole beneficiary. At the time, Mr. Heathfield and Ms. St. Jacques were in a common-law relationship. Under the Will, their two children were beneficiaries only in the event that Ms. St. Jacques did not survive Mr. Heathfield.

About two years after the Will was written, Mr. Heathfield and Ms. St. Jacques permanently separated.  Despite being advised at this time to formally change his Will, Mr. Heathfield did not.  Mr. Heathfield did, however, make handwritten comments on his Will. As these were not properly executed, they did not serve to alter the Will. Both parties agreed that the comments made on the Will were attributable to Mr. Heathfield and each comment was accompanied by Mr. Heathfield's signature. The comments included: "Nicole St. Jacques is Left nothing in my will"; "Change my will"; "My kids get everything".

The Public Guardian and Trustee ("PGT"), in its capacity as the children's litigation guardian, commenced this action under the former Wills Variation Act, R.S.B.C. 1996, c. 490 (the "WVA"); Mr. Heathfield died in 2011, before the Wills, Estate and Succession Act ( "WESA") came into force. The PGT contended that Mr. Heathfield failed to make adequate testamentary provision for his children and sought an order that the Will be varied to exclude Ms. St. Jacques as a beneficiary and divide the estate equally between the children, with each child's share being held in trust. The PGT argued it should be the trustee of such funds.

Ms. St. Jacques opposed the application because she asserted she would use her inheritance to her children's benefit and that the lawsuit was an attack on her integrity as a parent. In the event the Will was varied, she asked to be appointed the trustee.

Madam Justice Ballance held that Mr. Heathfield owed his children both moral and legal duties. The comments on the Will demonstrated that Mr. Heathfield recognized these obligations.  He owed no moral and legal duties to his ex-common-law spouse, Ms. St. Jacques.

Madam Justice Ballance concluded that, "by leaving the entirety of his substantial estate to his former spouse to whom he owed no legal or moral duty, and on whom he was not relying and with whom he did not have an agreement as to how she would subsequently provide for the children, the Deceased did not fulfill the legal or moral obligations of a contemporary judicious parent."

Accordingly, the Will was varied to create testamentary trusts for the children, funded by the entire residuary estate. There were no serious concerns about Ms. St. Jacques acting improperly with the funds so she was named as the trustee, and the PGT was named as the substitute trustee.

Although a recent decision, it was based on now-repealed legislation. If Mr. Heathfield had died after March 31, 2014, the WESA would have applied to his Will, and the children's entitlement to Mr. Heathfield's estate would have been much clearer. Section 56 of the WESA provides that, subject to a contrary intention appearing in the will, gifts are revoked to those who are no longer married or common-law spouses; Ms. St. Jacques gift would have been revoked and Mr. Heathfield's entire estate would have gone to his children. Furthermore, section 58 of the WESA empowers the Court to treat records that represent the will-maker's testamentary intentions, but do not comply with formal requirements, as valid. If Mr. Heathfield's handwritten comments on the Will were held to demonstrate his fixed and final intention, his entire estate would have also passed to his children this way.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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