The Supreme Court of British Columbia has clarified the circumstances in which certain wills must be drafted by lawyers rather than by notaries public.
In The Law Society of British Columbia v. MacDonald, a notary public was found to have violated the Legal Profession Act by drafting a will without the authorization to do so.
The respondent, Gail Joan MacDonald, was also banned from engaging in the practice of law not authorized by the Notaries Act.
Notaries public in British Columbia provide legal services to the public such as residential real estate transactions, will preparations, powers of attorney, health care directives, and statutory declarations.
Section 18 of the Notaries Act sets out the circumstances in which notaries public may draw and supervise the execution of certain types of wills.
MacDonald argued that a notary public could draft a will creating a life estate in real property by using two clauses.
The clauses had been suggested by a law firm at seminars sponsored by the Society of Notaries Public of British Columbia. Both clauses created life estates in which “remaindermen” would be granted their part of an estate after the death of a life tenant or after certain conditions were met.
But, in a decision released on Monday, Justice Miriam Maisonville found that notaries public who employed these clauses would be in breach of s. 15 of the Legal Profession Act as they would be carrying out services that can only be done by a lawyer.
Assets distributed by notaries must be done so “immediately” under the Notaries Act. The Society of Notaries Public of British Columbia, which acted as an intervener, claimed this referred to a point when all the beneficiaries were vested in interest.
But the law society said it referred to the point at which beneficiaries were actually in possession of an asset.
Maisonville sided with the law society, interpreting “immediately” as meaning “as soon as practicable given the legislative duties imposed on executors in respect of estates.”
“If the legislature had chosen to permit notaries to draft wills that provide for immediate vesting of assets as an alternative to immediate distribution, it could easily have done so,” she said.
MacDonald was also found to have engaged in the practice of law through her involvement in a probate dispute.
She had previously been reprimanded and fined by the Society of Notaries Public after she provided paid-for legal services to a private investigator retained by the law society.
Maisonville granted an injunction against MacDonald prohibiting her from carrying out probate and estate matters not authorized by the Notaries Act.
However, she declined to address the law society’s assertion that notaries public should not draft wills that create a life interest in real property.
