Estate Planning #6: Is it a Will?

It used to be, for something to qualify as a Will, a lot of formalities had to be fulfilled: one complete document (no writing between the lines, etc.); signed at the end by the Will-maker; signed by 2 witnesses who saw the Will-maker and each other sign; very particular language.  BC was stricter than many places.

A common result was that those store-bought “Will kits” were rejected as failing the formal tests – even though the Will-maker’s intentions were clear.

With the new Wills, Estates and Succession Act (“WESA”) “curative” provisions, a lot of documents which would have been rejected are now recognized by the Court as valid Wills.  Sometimes the Court has to edit the document to make it make sense.  And “document” doesn’t need to be a piece of paper…

A recent (almost startling) example is Rempel Estate: https://canlii.ca/t/jbpgx.  Mr. Rempel died 02 March 2015.  A search of his property found 2 thumb drives.  One drive held audio recordings of Mr. Rempel with a notary, discussing what he wanted his Will to say.  The audio recordings were identified as Mr. Rempel’s voice.  They matched text documents on the second drive, setting out Mr. Rempel’s intentions.

On 19 November 2020, Justice Robert Jenkins determined that the 2 drives demonstrated Mr. Rempel’s final intentions for his estate.  Justice Jenkins ordered that the estate be distributed pursuant to the terms set out in the thumb drives.

Seems like a good way to avoid a lawyer, right?  NOPE.  It took 5 years and a lot of money (paid by the estate) to find all of Mr. Rempel’s property.  Then it took a day-long court hearing, with 2 lawyers – and no guarantee – to get an order establishing the digital files set out Mr. Rempel’s Will.  I am guessing that the cost of Mr. Rempel doing his Will this way was over $50,000 (likely far more). 

A Will should include an inventory of all the assets: their location; account numbers if relevant; value at the date of the Will; and copies of any ownership.  As mentioned in an earlier blog, photographs may be useful.  Sloppiness may be corrected by the Court.  Or it may not.  Having a clear Will saves money and uncertainty.

We are hosting a free virtual Wills seminar on 12 May: WILL-power.  Sign up here: https://www.clearlaw.ca/register