What happens when someone makes a will in another jurisdiction which purports to revoke all former wills? Would such a revocation be binding on a validly made will in BC? Can the court rectify the foreign will so as not to apply to assets in BC? The recent decision of the BC Supreme Court in Re Estate of Church, 2024 BCSC 2490, provide some guidance on these questions.
Mr. Church (the Deceased) had prepared a will in 2007 in British Columbia with the assistance of his lawyer (the BC Will). The three beneficiaries under the BC Will were: the Deceased’s spouse, daughter and son.
Prior to his passing, the Deceased and his spouse were snowbirds who had purchased a property in California. In order to deal with his assets in California, the Deceased created a living trust in that jurisdiction (the California Trust). The Deceased’s two children were the beneficiaries of the California Trust.
In 2019, the Deceased made a ‘pour-over will’ (the California Will), which is an estate planning document used in California that directs a testator’s executor to ‘pour over’ any assets that the testator had failed to include in his trust for distribution under the terms of the living trust, meaning that probate is unnecessary in order to distribute the remaining assets from the living trust to the trust.
In an affidavit from the Deceased’s spouse, she deposed that the California Will bequeathed the entire residue of hers and the Deceased’s respective estates to the California Trust and revoked all prior wills. However, at the time of execution, she did not understand the California Will to have the effect of revoking the BC Will, or her own.
Faced with the dilemma that the BC Will may have inadvertently been revoked by the California Will, the Deceased’s son brought an application to rectify the California Will under s. 59 of British Columbia’s Wills, Estates, and Succession Act (WESA) so that it only applied to assets in California. The Deceased’s spouse consented to the application and his daughter took no position on the application.
In reviewing the applicable law, the Court confirmed that because the Deceased had lived in BC at the time of his death, WESA governed the rectification application. As a result, the Court had to determine the testator’s intentions, whether the California Will as written failed to carry out these intentions, and whether that failure was a consequence of an error arising from an accidental slip or omission, a misunderstanding of the will-maker’s instructions, or a failure to carry out those instructions.
In reviewing the facts, the Court found that it was clear that the Deceased had never intended that the California Will would include his assets in British Columbia. As a result, the California Will failed to reflect the Deceased’s intentions, which arose from an error in failing to carry out the will maker’s instructions. The Court considered the affidavit evidence from the Deceased’s spouse and his accountant, which indicated that the Deceased had intended to continue to rely on his estate planning reflected in the BC Will several years after executing the California Will. Ultimately, the Court rectified the California Will by amending several sentences to specify that the California Will only governed the Deceased’s assets located in California.
This case is interesting because it is an example of a BC court rectifying a will made in a foreign jurisdiction. This decision should also be of interest to those who have assets located outside of BC that are governed by a separate will. While this decision shows the Court’s willingness to defer to the will-maker’s intent when such errors arise, it is best practice to include specific language that reflects this intent in order to avoid unnecessary litigation.