SOURCE: Kushner Law

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January 15, 2016 16:15 ET

Vancouver Law Firm Addresses Informal Will Alterations

Vancouver Law Firm Kushner Law Group Discussions Alterations to Wills Done in Informal Manners

VANCOUVER, BC--(Marketwired - January 15, 2016) - Kushner Law Group, a Vancouver based law firm, has gone on the record with respect to some of the legal issues regarding informal changes to a will in their latest blog. Pop culture has popularized the idea that a note hastily scratched on the back of a napkin by the deceased can change the contexts of the will. However, this is not always the case in BC. For more information, go to: http://kushnerlaw.ca/napkin-notes-alter-will-in-bc-making-a-will-bc-law/

According to the article, in certain circumstances, notes written on their own do not serve to alter the will of the deceased. This issue was recently considered in the decision of Lane Estate, 2015 BCSC 2162, where the Court ultimately determined that a series of notes written on scrap paper did not constitute valid testamentary documents.

After reviewing the reasoning of a leading decision in Manitoba, a jurisdiction with a similar provision in place, as well as another recent British Columbia decision, the Court made the following comments:

… The key question is whether the document records a deliberate or fixed and final expression of intention as to the disposal of the deceased's property on death. A deliberate or fixed and final intention is not the equivalent of an irrevocable intention, given that a will, by its nature, is revocable until the death of its maker. Rather, the intention must be fixed and final at the material time, which will vary depending on the circumstances.

[33] The factors relevant to the determination of whether a document that does not comply with testamentary formalities embodies the deceased's testamentary intention are context specific. They may include the presence of the deceased's signature, the deceased's handwriting, witness signatures, revocation of previous wills, funeral arrangements, specific bequests, and the title of the document: Estate of Young at para. 36.

The precedent set by the decision makes it clear that hastily scribbled notes do not necessarily meet the formal requirements. Whether or not they represent testamentary intent is a context-specific question that would have to be determined by a court.

If you plan to amend your will, it is recommended that you do so with a lawyer who can make sure your final intentions are fully understood and can be legally upheld by the courts.

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The Kushner Law Group was founded on the principle that a small law firm should be able to offer the same level of legal advice as a big law firm at a more affordable cost. A unique combination of legal experience and creativity allows the professionals at Kushner to come up with creative and practical solutions for a variety of legal problems.

For additional information, please visit http://kushnerlaw.ca/ or call at 604-259-2288 ext. 806.

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