Unsigned Will Found Valid by BC Courts

For a will to be legally valid in British Columbia, it must meet three main requirements. The writer must put it in writing, sign it at the end, and make this signature in the presence of two or more witnesses. However, circumstances unique to the Covid-19 pandemic presented unique challenges for those seeking to write or rewrite their will. In the recent case of  Bishop Estate v. Sheardown, 2021 BCSC 1571, a BC court found an unsigned will to be valid.

Facts of the case

The case concerned the written but unsigned (and unwitnessed) will of a BC woman named Marilyn Bishop. Ms. Bishop had a previous valid will signed in 2014 with her husband at the time. After her husband’s passing, Ms. Bishop moved homes and had other significant changes in her life. In 2020, she reviewed her 2014 will and decided she wanted to appoint a new executor. She also wanted to change some of the beneficiaries, including the Kelowna General Hospital Foundation.

Ms. Bishop saw a solicitor to create a new will with different terms in February 2020. She communicated some minor adjustments to her solicitor, who then drafted the document. She scheduled an appointment to execute the will on March 20, 2020.

Due to the outbreak of Covid-19, she cancelled the appointment, and her care home prevented her solicitor from visiting her. Sadly, Ms. Bishop passed away a few months later in 2020 without signing or having her new will witnessed. This gave rise to estate litigation between the beneficiaries of the new will, the Sheardowns, the Kelowna General Hospital Foundation, and Ms. Bishop’s estate.

The Sheardowns asserted that Ms. Bishop’s final testamentary intentions were that they receive the assets of her estate, and that the courts had the power to “cure” the invalid will under section 58 of the Wills, Estates, and Succession Act (WESA). The judge found ‘hallmarks of authenticity’ in the document and decided to cure the will, as it demonstrated Ms. Bishop’s final testamentary intentions. If the court were to enforce her 2014 will, it would have effects that violated her final wishes.

Curing an Invalid Will under Section 58 of WESA

Under section 58 of WESA, courts are able to validate a document which doesn’t meet the criteria of a legally valid will but nonetheless expresses the final intentions of the will writer. Section 58 of the act empowers the courts to intervene in circumstances where a testamentary document does not meet the standards of a valid legal will. Ignoring such a document could lead to outcomes contrary to the deceased’s wishes.

In circumstances where an individual has an older but valid will and a new document which is unfinished or unsigned, it is standard for the terms of the pre-existing legal will to be enforced. However, interested parties can apply to the courts to have the new document cured in special circumstances. For more on curing testamentary documents, read our detailed article here.

If you’re concerned about writing, signing or witnessing a new will in British Columbia during the ongoing pandemic, or if you are otherwise unable to leave your home, contact an experienced estate lawyer today. Under new law put in place in May 2020, will writers are able to validly execute their will remotely from home.

Have a question about this topic or a different legal topic? Contact us for a consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.