198 THE ADVOCATE
VOL. 80 PART 2 MARCH 2022
In this case, the evidence showed that the deceased had not intended the
notes to stand in as a provisional will. The articling student had the
deceased sign the notes only to avoid a fee dispute, not for the deceased to
indicate that the instructions were her final intentions. Furthermore, the
articling student offered to assist the deceased in preparing a holograph will
containing the same terms as the instructions in case the deceased died
before the formal will had been prepared. The deceased declined.
LAWYERS’ NOTES AND TESTAMENTARY INTENTION
As we might expect, in the above cases, there was no real inquiry into the
authenticity of the document; in each case, the court was willing to accept
the lawyer’s evidence that they made the notes during a meeting with the
deceased for the purpose of drafting a will. This was sufficient evidence of
authenticity. It is likely that the court would take a similar approach in any
subsequent cases.
The main question in these cases is whether the lawyers’ notes truly
reflected the final intentions of the deceased. As the cases show, this may
be difficult to prove. Usually, the client will not read (and may be unable to
read) the lawyer’s notes from their meeting, and therefore cannot be said to
have approved of the contents of the notes. This would appear to go against
the principle that a will-maker must know and approve of the contents of
their will.
However, the court in George outlined an exception for a document made
at the request of the will-maker, and this exception would likely apply to a
lawyer’s notes. Although a client does not specifically instruct their lawyer
to take notes at a meeting, it is implicit in the lawyer’s job to create a draft
will that accurately records the client’s instructions.
There is also a practical reason for courts to recognize lawyers’ notes as
testamentary documents in certain situations—as the cases above show,
there are times when a lawyer will take will instructions from a person who
has testamentary capacity but who is severely ill. It is inevitable that some
clients in those circumstances will pass away before the lawyer has time to
draft their will, even when the lawyer makes every effort to hurry. In those
circumstances, the lawyer’s notes are likely the best evidence available of
the person’s testamentary intention.
DRAFT WILLS AND TESTAMENTARY INTENTION
Historically, courts have been reluctant to find that a draft will represented
the deceased’s testamentary intentions unless the deceased took some further
step to confirm that the draft represents their wishes.