A forensic report confirmed the note's authenticity
In a recent ruling, the BC Supreme Court found that a handwritten note effectively revoked a codicil and revived the original provisions of a will.
The dispute in Walker Estate (Re), 2024 BCSC 792 centred on a petition filed by Catherine Lynn Walker, the estate executor, seeking the court’s determination on the validity and impact of a handwritten note dated July 7, 2016. The note, purportedly written by the deceased, raised questions about its effect on a codicil dated February 25, 2016, and whether it revived clauses from a July 8, 2015 will. The application was made under s. 58 of the Wills, Estates and Succession Act (WESA).
The petitioner requested the court declare the note's testamentary effects and sought costs payable from the estate. The respondent, Cathy Cook, opposed the petition. While she agreed to the court determining the note's status, she disputed its authenticity and testamentary impact.
The evidence included affidavits from the petitioner, Cook, and legal assistants and a forensic document examination report. The deceased passed away on December 13, 2020, at the age of 101. The deceased had two children, the petitioner and a son named Barry Walker, who predeceased her in 2015.
The deceased moved to a retirement residence in Comox in 2010 and later required additional care due to health issues. The Supreme Court noted that the deceased had difficulty seeing and hearing and suffered from short-term memory problems in her later years.
The petitioner presented the will signed on July 8, 2015, which divided the estate equally among her children and grandchildren. The codicil signed on February 25, 2016, made significant changes, including appointing Cook as the trustee for her sons' inheritance.
The court examined the note, which stated, “I, Alice Walker revoke any changes to my 2015 will with Terry Swan,” and was signed “A Walker.” A forensic report confirmed the note’s authenticity, finding a strong probability that the handwriting was that of the deceased.
The court determined that the note represented the deceased’s fixed and final testamentary intentions. Factors influencing this decision included the deceased’s repeated distress over the codicil, her reliance on her long-time lawyer, and the note’s specific language and context. The court concluded that the note effectively revoked the codicil and revived the original provisions of the will.
Regarding costs, the court applied the modern approach the Court of Appeal endorsed, considering public policy considerations. It found it appropriate for the estate to bear the application costs for both parties, as the deceased’s actions had necessitated the litigation. The court awarded special costs to the petitioner and the respondent, payable from the estate.
