The COVID-19 pandemic has had, and continues to have, devastating and permanent impacts on the lives of many Canadians. The pandemic, especially in its early days, caused significant disruptions to daily life and the ability of Canadians to carry on business and conduct their personal affairs. These disruptions were felt acutely by the senior population, many of whom had to confront extreme restraints on their activities and mobility. In addition, there was great uncertainty about the potential duration of these restrictions.

One of the many interruptions faced was the temporary inability to formally execute a will in the presence of at least two witnesses, as most provincial legislation requires. Although most provinces eventually issued ministerial orders or introduced other measures allowing for the remote witnessing of wills, the elderly still faced many challenges to complete a will during this uncertain time.

This was the case for Marilyn Bishop, an elderly widow that lived in Kamloops, B.C. Ms. Bishop had a will that was executed in 2014, together with a mirror will executed by her then-husband. That 2014 will named Mr. Bishop as the sole beneficiary and the Kelowna General Hospital Foundation as the alternate beneficiary. Mr. Bishop passed away in 2016.

Eventually, in February 2020, Ms. Bishop met with a lawyer (from the same firm that prepared her 2014 will) to prepare a new will. The new will prepared on the instruction of Ms. Bishop differed from the 2014 will in that it named her niece-in-law and nephew (on whom she relied heavily for support following her husband’s death, as she suffered from an autoimmune disorder that required ongoing care) as the executor and alternate executor, respectively, removed the gift to the Kelowna General Hospital Foundation, and replaced her now-deceased husband as the sole beneficiary with the individual members of her nephew’s family. Once the document was finalized, an appointment was made in March 2020 to attend the lawyer’s office to execute it. However, Ms. Bishop cancelled the appointment on account of not being permitted to leave her care home (except for medical appointments).

Tragically, Ms. Bishop passed away approximately 4 months later, without executing the new will.

An application was brought before the Supreme Court of British Columbia for advice and direction regarding which of the two wills – the executed 2014 will or the unexecuted 2020 will – would govern the disposition of Ms. Bishop’s estate. Clearly, the two parties at odds in these circumstances were the Kelowna General Hospital Foundation and the nephew’s family.

The British Columbia Wills, Estates and Succession Act, like Alberta’s Wills and Succession Act, contains certain requirements for a will to be deemed valid, including that it is executed by the testator in the presence of at least two witnesses. That Act also, however, contains a curative clause which allows the Court to cure non-compliance with the formal requirements if satisfied that the document in question represents “the testamentary intentions of a deceased person” (the Alberta Act contains a similar provision).

The nephew’s family advocated for the Court to validate the unexecuted 2020 will on the basis that it represented the deliberate and final intention of Ms. Bishop. For obvious reasons, the Kelowna General Hospital Foundation took the position that the curative provision of the Act should not operate in the circumstances.

The two questions the Court had to answer were: (1) whether the unexecuted 2020 will was authentic; and (2) whether it expressed Ms. Bishop’s fixed and final testamentary intentions despite the fact that she did not execute it.

The key evidence before the Court was from the lawyer who prepared the 2020 will. According to his notes and recollection, Ms. Bishop wished to replace the Kelowna General Hospital Foundation as the sole beneficiary of her estate because she had no connection to that entity. According to the lawyer, the Foundation was named as a beneficiary in the 2014 mirror wills largely at the behest of Mr. Bishop, who had received care at the Kelowna Hospital earlier in his life. Mr. and Mrs. Bishop had no children of their own. Accordingly, Ms. Bishop wished to provide for her nephew and his family, who she had a strong bond with and who had helped with her care after her husband’s passing.

There was no dispute among any of the parties about Ms. Bishop’s testamentary capacity at the time of instructing the preparation of the 2020 will, nor was there any allegation of undue influence.

The evidence also established that the COVID-19 pandemic presented a very real threat to Ms. Bishop due to her compromised immune system. The Court was therefore able to infer that the reason for cancelling her appointment to execute the new will was solely a result of concern for her health. Furthermore, although the ministerial order permitting the remote witnessing of wills was issued in May 2020, there was no evidence that Ms. Bishop was aware of that option and, in any event, there was no evidence or circumstances to infer that Ms. Bishop’s testamentary intentions had changed. Ms. Bishop’s communications with the lawyer were clear that she was satisfied with the final draft of the will that had been prepared.

In the result, the Court agreed that the unexecuted 2020 will was authentic and reflected Ms. Bishop’s fixed and final intentions for the disposal of her assets. That will was therefore deemed valid pursuant to s. 58 of the Wills, Estates and Succession Act.

This case has broad application for those in similar circumstances across Canada, given the similarity of each Province’s wills and succession legislation. It is always best practice to ensure that a new will is duly executed in a timely fashion. However, as this case shows, where there are exigent circumstances (such as a global pandemic) there are ways for the Court to give effect to a testator’s true wishes so long as they can be reasonably ascertained.

The full text of this case can be found here: Bishop Estate v. Sheardown, 2021 BCSC 1571


Note that the foregoing is for general discussion purposes only and should not be construed as legal advice to any one person or company. If the issues discussed herein affect you or your company, you are encouraged to seek proper legal advice.