COVID restrictions do not defeat will-maker's intentions: B.C. Supreme Court

In a recent case, the B.C. Supreme Court demonstrated the extent of the court’s power to give effect to unexecuted wills against the backdrop of the COVID-19 pandemic restrictions.

The case of Bishop Estate v. Sheardown highlights one of the many legal consequences that will continue to arise from the pandemic restrictions. The will-maker’s beneficiaries cited the pandemic as the sole reason why Marilyn Bishop failed to fully execute her will. The court considered the will-maker’s intention and ruled that Bishop would have executed her will on March 20, 2020, if it were not for the exceptional circumstances of the pandemic.

The court noted that the “unique” circumstances of this case must be distinguished from other cases where the court refused to cure the deficiencies of the will. Ultimately in Bishop’s case, the court exercised its curative powers so as not to let the pandemic defeat the intention of the will-maker.

Under s. 37(1) of the Wills, Estates, and Succession Act (WESA), a valid will must be in writing, signed by the will-maker and two or more witnesses. But even if a will is insufficient in form, the court may cure the deficiencies under s. 58 of WESA by considering the testamentary intention of the deceased person.

In 2014, Bishop executed a will naming her husband and Kelowna General Hospital Foundation as beneficiaries. In 2020, following the death of her husband, Bishop requested her lawyer to draft a new will to include her nephew and to remove Kelowna General Hospital Foundation as beneficiary.

Bishop’s lawyer prepared the final draft of the will. She made an appointment to sign it on March 20, 2020 but she cancelled the meeting due to travel restrictions brought by the pandemic. She died four months later without signing the will.

There is no dispute that Bishop’s will did not comply with the requirements under the WESA because it was unsigned by the will-maker and witnesses. However, the court found it proper to exercise its curative power in order to give effect to Bishop’s testamentary intentions.

Context of the testamentary intention

The court considered the circumstance of the unexecuted will. Bishop’s nephew and his wife are the main beneficiaries of the unexecuted will. They became a regular part of Bishop’s life after the death of her husband and even when she moved to a care home as her health declined. It is within this context that she contacted her lawyer to discuss her affairs.  The court found that the unexecuted will represents Bishop’s fixed and final intention as of the time that she called her lawyer to book an appointment to execute it.

Delay in execution does not indicate change in intention

The four-month delay between the cancelled appointment to execute the will and Bishop’s death casts doubt on Bishop’s intention. The court resolved this by considering the nature of pandemic-related policies.

In May 2020, the provincial authorities gave indications of the possibility of easing up on travel restrictions. The court concluded that Bishop was likely waiting for the pandemic measures to be lifted before completing the execution of her will. Considered in this light, the court said that the delay cannot be an indication of any change in her testamentary intention.

In the end, the court was satisfied that the unexecuted will represents Bishop’s fixed and final intentions. The court then exercised its curative powers under the WESA to give effect to Bishop’s will.