www.willsandestateslawyersblog.ahbl.ca. In the article, Ms. Tsui discussed the recent BC case of Garnett Estate v. Garnett Estate. In that case, the judge had to decide whether a written will-planning questionnaire that had been prepared by the deceased in 2008 to update her 2005 will could be considered an actual will. To read the article, click here.
The court decided that the questionnaire, which had been signed by the deceased only hours before her death when she realized that she would not live long enough to see a lawyer, could be a valid will. The judge noted that the document was signed by the deceased in front of two witnesses, as would be required for a will.
Although we use case law as precedent, it's important to note that the judge took the specific circumstances into consideration. There was clearly no time for the deceased to do anything else to prepare a will. She had expressed concern for getting her will completed and had been relieved at signing the questionnaire. Every case has different facts, so the decision of the judge could have been much different in other circumstances. However, it is certainly an interesting decision, and I applaud the judge's efforts to ensure that the deceased's wishes were upheld.
I also believe this case illustrates the fact that an executor who has a document on hand that may or may not be a valid will has the obligation to show the document to the court, and to let the judge decide whether it's valid. I clearly remember a case I had a number of years ago when the family of a deceased man came to me for a second opinion on a home-made will. They had already been told by a lawyer not to bother probating the will because it was not valid. I too questioned the validity but did not think it was a cut-and-dried case. There was at least a case to be made for validity. We sent it to the probate court with the proper supporting documentation, and the judge confirmed that it was a valid will.
Executors, if you are not sure whether the document left behind by the deceased is a will or not, take it to an experienced wills lawyer who can give you an opinion and perhaps help you get it in front of a probate judge.