196 THE ADVOCATE
VOL. 80 PART 2 MARCH 2022
accountant, and the accountant wrote down those wishes and mailed them
to a lawyer, asking the lawyer to prepare a draft will.
Later, the client met with the lawyer. During the meeting, the lawyer told
the client that he would not prepare the will unless the client obtained a
medical opinion that he was competent. The client told the lawyer that he
wanted to sign the will at that meeting, but the lawyer had not prepared a
draft will and insisted on the medical opinion.
The deceased died months later without obtaining the medical certificate
of competency or returning to the lawyer. The accountant sought to have
his letter to the lawyer admitted to probate.
The Manitoba Court of Appeal provided a specific test for possible testamentary
documents created by a third party. The document must be made
at the request of the deceased or with the deceased’s knowledge. Further,
the deceased must know and approve of the contents of the document, and
those contents must record the deliberate and final intentions of the
deceased.4
In George, the accountant’s notes could not be a testamentary document
under this test. There was no evidence that the deceased had seen the
accountant’s letter to the lawyer, and the deceased had not directed the
accountant to record his wishes in the letter to the lawyer. The deceased
therefore had not approved of the contents of the letter.
However, the court suggested that in certain circumstances, a lawyer’s
notes of a client’s will instructions could act as a provisional will until a
more formal will could be prepared, as long as those notes reflected the
deceased’s wishes and the deceased intended the lawyer’s notes to act as a
provisional will.5
This suggests that a lawyer’s notes of will instructions given by the
deceased presumptively fulfill the criteria of authenticity on the assumption
that the lawyer verified the identity of the person giving will instructions,
that the client gave those instructions and that the lawyer correctly
recorded the instructions. It is likely that the same analysis would apply to
a draft will prepared by a lawyer.
CASES INVOLVING LAWYERS’ NOTES
There have been a few cases across the country in which the court considered
whether a lawyer’s notes reflected the testamentary intention of the
deceased, but there are currently no such cases reported in British Columbia.
As with all testamentary document cases, the courts made a fact-
specific inquiry to determine whether the notes in question were the testamentary
wishes of the deceased.