THE ADVOCATE 195
VOL. 80 PART 2 MARCH 2022
WILL OR WILL NOT:
PRACTICE IMPLICATIONS OF SECTION 58
OF THE WILLS, ESTATES AND
SUCCESSION ACT
PART II: WILL INSTRUCTIONS AND DRAFT WILLS
By Jennifer P. Bednard
Part I of this article, published in the July 2020 issue of the Advocate,
asked the following question with reference to s. 58 of the
Wills, Estates and Succession Act1 (“WESA”): What is a testamentary
document anyway?2 After a long gap, we return to the
developing law of testamentary documents. Although the principles of the
law have not changed, new and varied cases continue to come before the
courts.
In particular, the COVID-19 pandemic and the resulting restrictions on
travel and in-person visits to hospitals and care homes have made it more
difficult for will-makers to ensure their will is properly witnessed. It has
also made it more difficult for lawyers to reach clients who want to change
their wills.
This leads to a pressing question: Can documents prepared by the lawyer
during the estate-planning process be recognized as testamentary documents?
If so, how should lawyers respond?
LEGAL PRINCIPLES
As outlined in Part I of this article, the two-step test for testamentary documents
is: (1) Is the document authentic? (2) Does the document represent
the fixed and final intentions of the deceased?
Courts have long been alive to the possibility that instructions to a lawyer
or a draft will prepared by a lawyer could meet this test. George v. Daily,3 the
leading Canadian case on testamentary documents, was an application to
have the court recognize will instructions as a testamentary document.
In George, the deceased did not provide his will instructions directly to
his lawyer; instead, the deceased set out his wishes in a meeting with his