Solicitor's Reporting Letters Validated As List "Will" Of Client: Re McGavin Estate, 2023 BCSC 819

• Published date: 16 June 2023
• Subject Matter: Family and Matrimonial, Wills/ Intestacy/ Estate Planning
• Law Firm: Borden Ladner Gervais LLP
• Author: Mr Scott Kerwin, Cory Ryan, Daniel Dochylo, Peter Glowacki, Pamela Cross and Kathleen McDormand

The recent decision of the Supreme Court of British Columbia in Re McGavin Estate, 2023 BCSC 819 (25 April 2023, E. McDonald J. confirms the broad scope of the "validation power" contained in section 58 of British Columbia's Wills, Estates and Succession Act (WESA). The Court ordered that copies of two reporting letters sent by solicitors to their client concerning instructions for a new will, with one of the letters annotated with the client's handwritten notes, be declared to be the client's last "will" and admitted to probate.

Facts in McGavin Estate

The McGavin Estate decision involved the estate of Marian McGavin, who died in North Vancouver in 2022 at the age of 76. She had no children and did not have a spouse at the time of her death. Pursuant to the intestacy rules of the WESA, Marian's estate would have devolved in its entirety to her brother Morris, who resides in Ontario, if she died without a will.

The evidence before the court showed that Marian and her brother Morris had been estranged for many years. However, Marian had a very close relationship with Morris's daughter Lisa Irwin, and Lisa's three children. She was not particularly close to her other niece Tamara, but (as a former schoolteacher) expressed an intention to make provision for Tamara's two children.

In the fall of 2019, Marian met with a lawyer from Miller Thomson LLP at hospital in North Vancouver. The purpose of the meeting was to deal with incapacity planning documents, and Marian executed an enduring power of attorney and a representation agreement in which she appointed her niece Lisa as her attorney and representative. During this meeting, there was also a preliminary discussion about making a new will, as Marian had confirmed that she presently did not have a will. Marian made clear to her lawyer that she did not want to die intestate and that she did not want any part of her estate to pass to her brother.

Marian was later moved to a long-term care facility. She was found to be incapable of managing her financial affairs, but still had testamentary capacity. Between December 2019 and February 2020, Marian met with her lawyers twice in regard to making a new will, and had several telephone calls. She confirmed again that she did not want to leave any part of her estate to her brother Morris and wanted to make a will that primarily benefited her niece Lisa and Lisa's three children. (Marian had already designated Lisa as the beneficiary of her registered accounts). She...