THE ADVOCATE 199
VOL. 80 PART 2 MARCH 2022
This was true in several B.C. cases involving draft wills.
The deceased in Bailey Estate (Re)9 went to her lawyer two years before her
death and asked the lawyer to make changes to her will. The lawyer prepared
a draft will, but the lawyer and the deceased were unable to meet until over
a year later. At that meeting, the lawyer confirmed the deceased’s instructions.
She finalized the draft will and sent it to the deceased for review.
After review, the client requested a further change. The lawyer made the
change and sent the client the revised draft. The lawyer followed up with
the deceased several times, but the deceased never indicated that she had
reviewed the draft and never asked about executing the will. The deceased
died without signing the will.
The lawyer provided an affidavit stating that she thought the will represented
the deceased’s testamentary intentions, but did not know for sure.
The court found that, based on the deceased’s conduct, the execution of
the will was not important to the deceased. The deceased did not tell anyone
that the will represented her intentions, and she made no attempt to revoke
her previous will. Therefore, the will was not a testamentary document.
In Herod Estate (Re),10 the deceased went to a lawyer to make several
changes to his will. The lawyer said that she would have a will for the client
shortly, and the two discussed options for witnesses at the execution of the
will. Eventually, the lawyer mailed the will to the deceased, and the
deceased confirmed receipt. The lawyer again provided instructions for
executing the will and followed up several months later but received no
response. The deceased died two weeks later. The will was still in his apartment,
unsigned, when he died.
The court found that the deceased took no steps to finalize the new will,
nor did he request that the lawyer destroy his previous will. The court
found that in the absence of any evidence that the deceased intended the
will to be effective, the will should not be granted testamentary status.
The facts in Van De Bon Estate (Re)11 are similar, though the decision is light
on detail. The deceased consulted a lawyer about changing his will, and the
lawyer provided him with a draft will. The deceased took no further steps to
finalize the new will, and the court found that in these circumstances, the
draft will did not represent the deceased’s testamentary intentions.
These cases are consistent with cases in other jurisdictions involving
draft wills. In cases in Alberta and Saskatchewan,12 the deceased met with
a lawyer and provided instructions for the preparation of a draft will. On
receiving the draft will, the deceased took no further steps toward executing
their will. In each of these cases, the court found that the draft will was not
a testamentary document.