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Wednesday, December 20, 2017

Millionaire's handwritten notes count as final wishes, court rules

This month there was a new case from Nova Scotia which caught my attention. Dorothy Gwendolyn Jones died in Halifax in 2015 leaving an estate worth $6,700,000. Mrs. Jones, who was 92 years old and a widow, left a valid will.

Mrs. Jones' executor obtained probate of the will and started working on the estate. While doing so, he found four notes handwritten by the deceased Mrs. Jones. Two of the notes dealt with funeral instructions. The other two gave cash bequests and distributed personal items to various people. The executor submitted all of the notes to the court to find out whether they were testamentary instruments or not. In other words, was he supposed to be following what was in these notes or not?

The judge decided that the two notes that talked about funeral and cremation were not testamentary. They didn't change what was in the will or give away anything to anyone. The judge decided that the two other notes were valid instructions for the executor to follow. The reasons given by the judge were interesting because he talked about trying to figure out what Mrs. Jones intended when she made the notes. Did she intend to add to her will? Did she intend the note to give gifts on her death? Were they just random notes she jotted down to think about later? It was pretty instructive for anyone who is in a similar situation in terms of figuring out whether a handwritten note is a codicil, a Memorandum, or nothing at all. Anyone who wants to read the entire judge's decision can do so by clicking here.

Another interesting thing about this case is this: Mrs. Jones died in September of 2015. The judge released his decision in December 2017. That is two full years while the documents made their way through the court system. Two years while the beneficiaries waited, the executor couldn't get on with his life, and legal fees flowed out of the estate. And think how much worse it would be if there was anyone contesting it! This was a case of steering a basically unopposed application through the court system.

In a recent CBC News story, lawyer Jessica Lyle speculated that Mrs. Jones might have decided to do handwritten supplements to her will because she didn't want to spend the money to have a lawyer do it. She may be right, as people certainly do think it's a way to save money. However, as  pointed out by Ms. Lyle and must be obvious to everyone, there was absolutely no cost saving when you weigh the price of a will against the price of two years in court.

When you pay a lawyer to prepare a will, you're not just buying a piece of paper. You're paying for the advice and the experience of the lawyer. You're paying for the lawyer's expertise in applying estate, tax, and family laws to your specific situation. And of course you're paying for the peace of mind that your will won't have to spend two years or more in the court system before your family can have your estate.

4 comments:

  1. It seems odd that if the Testator intended for the handwritten notes to be part of her will, why she hadn't kept them with or attached to her will.

    An executor in locating the 'will', would not normally be expecting additional pages located elsewhere. It would be likely, those additional notes might be considered random and therefore discarded, with the provisions not fulfilled.

    If the additional notes were kept with the will, even if the executor needed direction from the court for those notes, at least that could have been addressed when the will was probated, not two years after the fact.

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  2. You make an interesting point, but in reality life is not so tidy. Her will might have been stored at a safe deposit box or other place where she didn't have immediately access. She might have been planning to organize all her papers together one day. Maybe she was waiting for inclement weather to pass before venturing out and then forgot about the papers. Could be anything.

    I think that if the papers had been found with her will, it would be fair to draw the conclusion that she meant them to be part of the will. But the fact that they were not kept with her will doesn't allow us to conclude the opposite. Is that a contradiction? Perhaps, but we have to do all we can to ensure that a person's wishes are followed even if they were disorganized or procrastinating or for any other reason didn't make that easy.

    Lynne

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  3. Is there a time limit on estates?

    That is vague, sorry. I just received a notice that a small pension wind up is taking place and I was tracked down through the funeral home. They will be sending a cheque for about $5500. payable to "Estate of....my dad. here is the problem, my dad died 4 years ago. My mom was his executor (me named as secondary if she was unable to act) and sole beneficiary. All good. But in 2016 she died. I was executor and sole beneficiary. (only child). How on earth will I deal with this cheque. Will the bank just let me cash it? No probate was done as his modest estate just transferred directly to my mom and then hers to me.

    ReplyDelete
    Replies
    1. Since your Mom passed, you are now the executor for your Dad's estate. That much is easy enough to prove using his will.

      It is possible that the bank will let you cash the cheque because it's a pretty small amount. I would anticipate them asking you to sign an indemnity form at the time of cashing it. Banks sometimes use that procedure rather than requiring someone to spend the whole cheque on getting probate.

      Call the bank and ask to set up an appointment with whoever they have who knows the most about estates. Then don't be surprised if there is a delay while they phone their legal department for assistance.

      I'm pretty confident that in the end, the cheque will be cashed.

      Lynne

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