Logan Estate: An Example Of Best Practices In Will Drafting

• Published date: 15 February 2021
• Subject Matter: Family and Matrimonial, Wills/ Intestacy/ Estate Planning
• Law Firm: Bennett Jones LLP
• Author: Ms Barbara J. Kimmitt, Allyson Cairns-Walji and Mikayla Hill

A person who challenges the validity of a will has the burden of rebutting the presumption that a will is valid. In Logan Estate (Re), 2021 ABCA 6, the challenger was unable to rebut this presumption due to the strength of the drafting solicitor's notes. This case reaffirms the importance of specific protocols that a solicitor should follow when drafting and executing a will, and in particular emphasizes the importance of keeping good file notes.

Background

The deceased, Velma Logan, made two prior wills that divided her estate equally amongst her six children. If a child predeceased her, that child's share would pass to his or her surviving children (Velma's grandchildren). Subsequently, one of Velma's children, Bonnie Balanko, died. Velma then changed her will leaving her estate to her five surviving children, rather than leaving Bonnie's share to her children.

According to the drafting solicitor's notes, Velma wanted to change her will because Bonnie's husband told Velma that he would make ample provision for his children, and he asked that his children not be included in her will.

One of Bonnie's children, Jody, challenged the will, alleging suspicious circumstances surrounding the will's preparation and execution by relying on her own uncorroborated evidence.

The Decision

After the proponent of a will establishes due execution and knowledge and approval, a person who challenges the validity of a will bears the legal burden of proof to rebut the presumption of validity. Pursuant to section 11 of the Alberta Evidence Act, a challenger requires material evidence to help support his or her claim; uncorroborated evidence will not suffice. The court will pay careful attention to the material on the evidentiary record. Specifically, the drafting solicitor's notes play a large role in understanding the context of preparing and executing a will.

In Logan Estate (Re), the drafting solicitor took extensive, detailed notes setting out his conversations with Velma when he met with her to discuss her instructions, and again later when he met with her to review and sign the will. He made contemporaneous memoranda to his file...