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Friday, September 11, 2020

BC Court says the intention of the testator more important than strict adherence to the rules


There are lots of rules out there about what makes a will valid or invalid. Though each and every rule has it reason for existing, sometimes a specific rule might be at odds with the intention of a will. In a new case in BC (Re Jacobson), the court decided that the intention of the testator was more important than the strict operation of the rules.

Helga Jacobson and Naida Hyde were in a marriage-like relationship together, but later separated. While the couple was together, Helga made a will leaving everything to Naida. Helga was not aware that BC has a rule that says that gifts to a separated spouse are automatically revoked. Apparently her lawyer didn't know either because Helga talked to her lawyer after the separation. During that conversation, Helga told her lawyer that she still wanted Naida to receive the estate, but the lawyer didn't advise her to make a new will. Soon after, Helga passed away.

If the rule revoking the bequests to Naida were to be followed, Naida would receive nothing. The executor of the estate took the case to court to ask the judge whether the gifts to Naida should be revived. This request was based on the information that Helga had told her lawyer she wanted to Naida to inherit the estate despite their separation. Helga had also told this intention to a friend who was named under a Power of Attorney.

The court decided that Helga's intention was clear. She wanted Naida to have the estate. The court said it was more important to carry out her wishes than it was to strictly follow a specific rule that would give the opposite effect.

In estate law, it's one of our guiding principles that we try to give effect to the wishes of a person who has passed away. I think the court got this one exactly right.

To me, it's always interesting to see a case like this. The rule is there and is effective in its purpose, but in this case the rule was overcome intentionally by the judge. I wouldn't want people to believe that they can ignore rules and the courts will always fix things for them as a matter of course. This case doesn't mean that we can ignore rules without consequences. But it does mean that when possible (meaning the evidence is there and is very clear) the courts will help give effect to a testator's wishes.

2 comments:

  1. I believe that the majority of people would agree with this outcome. I believe I understand the BC rule but sometimes there are exceptions, and this is one of them. Point-Judge.

    The fact that the lawyer was not aware is a little disconcerting. Yes? No?

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  2. Webeye, yes the lawyer being unaware of the rules is worse than disconcerting. I suspect the local law society might have been drawn into the discussion since this lawyer let his client and her beneficiaries down very badly.

    This is why when I recommend on here that someone see a lawyer, I always say that it should be someone who does a lot of wills and estates work. No lawyer should dabble where they don't know the area of law. It's just plain dangerous, but lots of them do it, especially with wills. Unfortunately, when people call law firms they ask "do you do wills?" and the answer is yes, whether the lawyer does two a year or ten a day. Legal consumers need to work a bit harder at finding lawyers who specialize.

    Lynne

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