Generally speaking, when a Canadian person passes away, those left behind consult the deceased’s “Last Will and Testament” to explain how the deceased wanted their assets distributed after their death. Sometimes, a situation arises wherein someone who knew the decedent expresses that the Last Will and Testament do not reflect the decedent’s true intentions.
For this reason, such a person may seek to have the will “rectified” to better align with the deceased’s wishes. But how is such rectification achieved? Can anyone seek it, or can it only be pursued by an executor of an estate? And how does one prove the true intentions of a person who has passed away?
These questions are addressed in the recent BC Supreme Court decision Estate of Joyce Schulz v Locke.
Three Testamentary Instruments Exist in Respect of Decedent
The case of the Estate of Joyce Schulz v Locke involved a dispute amongst the beneficiaries of the estate of Joyce Schulz, who passed away on April 28, 2022. Joyce was survived by one of her two daughters, Ms. Sutherland, the two grandchildren who are the children of her deceased daughter, Ms. Locke and Mr. Legault, and a stepdaughter, Lynn Houston.
There was evidence of three separate testamentary instruments created by Joyce in respect of her estate, the first of which is a will dated October 26, 2012, which purported to revoke all previous wills and appointed Joyce’s second husband and her daughter, Ms. Sutherland, as joint executors and trustees. That will dictated that should Joyce survive her second husband (which she did), then her estate was to be divided equally amongst three beneficiaries, as follows: one-one-third to her daughter Ms. Sutherland, one-third to her step-daughter Ms. Houston, and one-third to the grandchildren, Ms. Locke and Mr. Legault.
The second testamentary instrument is also a will, dated December 17, 2013, which also purported to revoke all previous wills and appointed Joyce’s second husband and Ms. Sutherland as joint executors and trustees. However, this will be provided that, should Joyce survive her second husband, then Ms. Sutherland was to inherit Joyce’s condominium property located in Burnaby, British Columbia, and that the residue of the estate was to be equally divided amongst three beneficiaries: Ms. Sutherland, Ms. Houston and Ms. Locke/Mr. Legault.
The third testamentary instrument is a codicil dated November 22, 2017. Language included in the codicil stated that it was a “Codicil to the last Will of me, Joyce Schulz … which last Will is dated the 26th day of October 2012 and is referred to in this Codicil as ‘My Will’”. The codicil, which referenced specific paragraph numbers and other information included in the 2012 will, was intended to affect two major changes to Joyce’s previous wills: first, that specific gifts of $5,000 each were granted to each of the grandchildren (Ms. Locke and Mr. Legault) and to two step-grandchildren (the children of Ms. Houston), and; second, that, should Joyce survive her second husband, then the residue of her estate was to be equally divided amongst two groups of beneficiaries: Ms. Sutherland, who comprised the first beneficiary, and Ms. Locke and Mr. Legault, who comprised the second beneficiary. It was acknowledged that these changes were undertaken largely in response to the fact that Joyce and her husband had gifted Ms. Houston $100,000 in cash, and as such, Ms. Houston was excluded from the division of property post-death.
A Dispute Arises as to Which Will Govern; Rectification Sought
When Joyce passed away, because she had outlived her second husband, Ms. Sutherland became the sole executor and trustee of the estate. In undertaking this role, a dispute arose about the effect of the codicil, which purported to modify the 2012 will despite the 2013 will. Ms. Sutherland contended that the Codicil modified the 2012 will in error and that it was intended to modify the terms of the 2013 will by its own language.
Ms. Sutherland testified that when her sister, Joyce’s daughter, Brenda Krutow, passed away in 2004, leaving behind her two children (Ms. Locke and Mr. Legault, who were then 12 and 15 years of age, respectively), Ms. Krutow left her entire estate, including the family home, to her children, in trust. After Ms. Krutow’s death, her sister, Ms. Sutherland, sold her old home, moved into the Krutow family home and became the guardian of Ms. Locke and Mr. Legault and the administrator of the children’s trust. In recognition of the great sacrifices she had made to raise her sister’s two children, Ms. Sutherland contended that Joyce decided to specifically gift the BC condo to Ms. Sutherland, as evidenced by a property transfer document that shows that, when the condo was purchased in 2006, Joyce listed Ms. Sutherland as a joint owner of the property along with herself and her second husband. As such, Ms. Sutherland sought to rectify the 2013 will in light of the terms of the Codicil and to administer the estate by the terms of the 2013 will.
Legal Principles Applicable to Rectification of a Will
Rectification of a will may be sought under section 59(1) of British Columbia’s Wills, Estates and Succession Act and, generally speaking, may be sought by any family member of the decedent, beneficiary of the will, or creditor of the estate.
When a person seeks to rectify a will in British Columbia, the court will consider three criteria:
- What were the intentions of the deceased person with respect to the issue for which rectification is sought?
- Does the will, as written, fail to satisfy those intentions?
- Is that failure a consequence of one of the reasons specified in section 59(1)(a)-(c) of the WESA?
Any evidence of the decedent’s true intentions “must exhibit a high degree of clarity, persuasiveness and cogency’ to justify” a judge making amendments to a legal, duly executed will. While the evidence need only be proven to the civil standard of the “balance of probabilities,” the “court must proceed with caution and ought not to make alterations to a duly executed will in the absence of clear and cogent evidence that the will fails to give effect to the testator’s true intentions due to an accidental slip, a misunderstanding as to the will-maker’s instructions, or a failure to give effect to those instructions.” Such evidence is typically presented in the form of an affidavit from the solicitor who prepared the will, which is generally able to provide evidence of the decedent’s state of mind and true intentions when the will was created.
While the solicitor’s evidence is preferable to the evidence or testimony of any other party, the court will consider other evidence, particularly in circumstances where the solicitor is deceased or is otherwise unable to provide any testimony regarding the will in question.
Application of the Legal Principles to This Case
In this case, the court noted that consideration of the issue was complicated by the fact that the solicitor who had prepared Joyce’s will had since passed away and was thus unable to provide any testamentary evidence. The court acknowledged that “the absence of any affirmative evidence from the drafting solicitor of a mistake or failure to understand or give effect to the testator’s instructions makes a claim for rectification more difficult to establish,” as the person who prepared the document is not himself available to explain any drafting errors or information concerning why the codicil was drafted in the manner it was (i.e., to modify the 2012, rather than the 2013, will).
That said, the solicitor’s entire file concerning Joyce was made available to all parties to this trial, which was helpful insofar as the file included some hand-written notations concerning Joyce’s intentions in enacting the 2017 codicil.
The court rejected Ms. Sutherland’s claims that the codicil should be interpreted to modify the 2013, rather than 2012, will, given that the language of the codicil specifically referenced the 2012 will, including making multiple references to specific paragraphs and sections thereof, and the fact that the solicitor’s notes in respect of the codicil indicated that it was intended to amend the 2012 will. With respect to testamentary intention, the court was satisfied that the codicil itself was the best evidence of Joyce’s intentions, given that it expressly purported to modify the terms of the 2012 will.
In these circumstances, Ms. Sutherland had failed to prove that Joyce’s intentions at the time of the making of the codicil were anything other than those reflected in the codicil itself, failed to prove that there had been any error in the interpretation of Joyce’s intentions, and failed to prove that there was any misunderstanding of Joyce’s intentions in creating the codicil; as such, the court was satisfied that Ms. Sutherland had failed to prove that rectification of the will was warranted in his case.
The court then went a step further and granted Ms. Locke’s application for a finding that the codicil revoked the 2013 will and revived the 2012 will, which was the one following which the estate should be distributed.
Contact the Estate Lawyers at CM Lawyers in Vernon and Salmon Arm for Advice on Your Will and Estate Matters
If you or someone you know is navigating the complexities of estate law, such as rectifying a will, the seasoned estate lawyers at CM Lawyers in Vernon and Salmon Arm, BC, are here to assist. Our team has the knowledge and experience to provide comprehensive legal counsel and representation tailored to your needs. To schedule a consultation and discuss your situation, please contact us at (250) 308-0338 or conveniently through our online contact form.