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April 20, 2017 19:15 ET

Vancouver Litigation Lawyers Discuss the Validity of Unsigned Wills

Litigation lawyers look at a case where the BC Court declined to uphold an unsigned will

VANCOUVER, BC--(Marketwired - April 20, 2017) - The litigation lawyers at Kushner Law Group come up with creative and practical solutions to a variety of legal problems. As practitioners in estate planning and litigation, it's important to understand when precedents are set that could impact future cases. The latest article on the company website examines a BC Court decision regarding an unsigned will. For more, go to: http://kushnerlaw.ca/bc-court-declines-uphold-unsigned-will/

In the case of Herod Estate (Re), 2017 BCSC 318, the Honourable Master MacNaughton was asked to consider whether an unsigned will prepared in 2015 represented a valid, testamentary instrument, replacing a signed will drafted by the same lawyer in 2014.

The Wills Estates and Succession Act (WESA) was passed in an effort to modernize estate legislation in the province of British Columbia. Section 58 of WESA allows an applicant to apply to the Court to rectify a deficiency in a document that the applicant purports to be a will. This section has been used by applicants who wish to prove that a document that does not meet formal requirements should still be recognized as a valid testamentary instrument.

In Herod Estate (Re) 2017 BCSC 318, the lawyer -- on the instruction of the testator -- sent the new will to the testator's home on July 22, 2015 with instruction on how formalize the document, but the testator died on October 13, 2015, leaving the draft incomplete.

The Court made the following comments with respect to the validity of the 2015 will:

[41] There is just no evidence to explain why Mr. Herod took no steps between July 29, 2015, and Ms. Kiel's follow-up telephone call to him on September 30, 2015, to either have Lisa Marie and another person, witness his signature, or to follow up on Ms. Kiel's suggestion that two assistants from her office could attend at his home to do so.

[42] He also did not follow up with Ms. Kiel's office or provide her with instructions to destroy the 2014 will. Apparently he did nothing. There is no explanation in the record for why that was.

[43] Mr. Herod also did not return Ms. Kiel's September 30, 2015 voice message.

[44] The fact is that he did not sign or even initial the 2015 will, with or without witnesses.

[45] In all these circumstances, and on the evidentiary record, I cannot conclude that the 2015 will sets out Mr. Herod's settled intentions with respect to disposition of his estate. Something more was required.

[46] As a result, Mr. Herod's 2014 will has not been altered or replaced.

To discuss whether the validity of a will or to determine whether a different testamentary instrument is valid, contact the Kushner Law Group today to schedule a consultation.

About the Company

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 firm at an 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 604-629-0432.

Contact Information

  • Kushner Law Group
    Lars Kushner
    Phone 604-629-0432 Fax 604-689-4451
    Company website: http://kushnerlaw.ca/
    1008 Beach Ave #105