99 Executor Problems, But a Draft Will Ain't One - Draft Will Not Found to Be Valid

Bailey Estate (Re), 2016 BCSC 1226

Candace Cates (Ms. Cates) sought determination pursuant to s. 58 of WESA (curative provision) whether the unsigned, draft will of Jann Louise MacInnis Bailey (Ms. Bailey), dated December 2014, represented her intentions to replace or alter her last will and testament dated January 29, 2008. 

Ms. Cates was Ms. Bailey’s lawyer and had drafted the will of 2008 and drafted the unsigned will of 2014.  She is the named executrix in the 2008 will and the co-executor in the 2014 draft will and requires the court’s determination otherwise she is unable to swear the affidavit required of an executor under the Supreme Court Rules for probate. 

Ms. Cates’ position is that the 2014 draft will, in whole or in part, represents the testamentary intention of Ms. Bailey. 

Ms. Cates had been Ms. Bailey’s lawyer since ~2004 and in January 2008 Ms. Bailey instructed her to prepare a will, which she signed on January 29, 2008. 

In May 2013, Ms. Bailey told Ms. Cates that she wished to make changes to her 2008 will.  Ms. Bailey later told Ms. Cates of the changes she wished to make, the most significant being to her named executor, a gift of her real and personal property in Northern Ireland in favour of her husband, Alan Quinn, and in addition, alternate residual beneficiaries. 

Much went on regarding the 2014 draft will (see case) and in the end it was never signed.  While Ms. Cates did prepare a draft will, Ms. Cates and Ms. Bailey were unable to meet effectively due to their busy schedules.  There were a number of missed meetings, but they finally met in July 2014 to discuss the draft .  While the draft will was not completed and executed at this time, Ms. Bailey provided further instruction for the will.  Ms. Cates had made efforts to remind Ms. Bailey of the draft will, but it did not seem of great importance to Ms. Bailey.  

Ms. Bailey passed away before the 2014 will was ever executed.  

Ms. Cates takes the position the 2014 draft will, or part of it, represented Ms. Bailey's final testamentary intentions as much work had gone into the 2014 draft and there seemed to be clear changes that Ms. Bailey wished to have within this 2014 draft will.


The 2014 draft will was not deemed valid.  Importantly, the court noted that between May 2013 and December 8, 2014, Ms. Bailey did not indicate to anyone whether the December 2014 draft will set out her intentions.  Aside from discussing the draft will with Ms. Cates, Ms. Bailey did not tell anyone, write to anyone or in deed, or mention the draft will and whether it represented her final testamentary intentions.  Although she had discussed the 2014 draft will and had given instructions to Ms. Cates, Ms. Bailey did not revoke her 2008 will by word or deed for over 2 years.  Ms. Bailey left nothing, either electronic or on paper, that the December 2014 draft will represented her final intentions.  The court found there was not any expression by her whether the December 2014 draft will was a final expression of her testamentary intentions. 

Similar to Sawatzky, the court concluded that the draft will could not be entered into probate.  Ms. Bailey never adopted the 2014 draft will and did not tell anyone that she was satisfied with it and wanted to sign it.  On the balance of probabilities, the December 2014 draft will was not Ms. Bailey’s fixed and final testamentary intentions and it could not be cured by s. 58 of WESA. 

The court reviewed the case law on the s. 58 curative provisions of WESA in delivering the decision.


[48]        Mr. Quinn seeks to have Ms. Bailey’s unsigned December 2014 draft will, or part of it, probated.

[49]        Between May 24, 2013 and December 8, 2014, there were several different draft wills which culminated in the December 2014 draft will. The changes in the draft will centred mainly around Ms. Bailey’s executor, her personal possessions, her artwork, and the disposition of the Northern Ireland property to Mr. Quinn. The latter was discussed between Ms. Bailey and Ms. Cates on May 24, 2013 and in July of 2014.

[50]        I conclude that the preparation and the anticipated execution of the December 2014 draft will was not of paramount importance to Ms. Bailey. She gave instructions at different times, she missed meetings with Ms. Cates, there was a fee dispute, she put off reading a previous draft, and she postponed making an appointment to see Ms. Cates to review the will despite reminders by Ms. Cates by email on March 16 and May 7 of 2015. Ms. Bailey did not tell Ms. Cates whether she wanted changes to the December 2014 draft will or whether she wanted to execute it.

[51]        On July 31, 2015, Ms. Cates’ spouse, Mr. Erlank, met Ms. Bailey relating to investment matters. She told Mr. Erlank that she needed to set up an appointment “to complete” the December 2014 draft will. This statement, taken at its best, indicates that she wanted to replace her 2008 will with a new will. This also could mean that she had changes to make. She did not say to Mr. Erlank that she intended on signing the December 2014 draft will.

[52]        Between May of 2013 and December 8, 2014, Ms. Bailey did not indicate to anyone whether the December 2014 draft will set out her intentions. Despite Ms. Cates’ opinion that the will represented a deliberate and final expression of Ms. Bailey’s intentions, there is nothing that comes from Ms. Bailey either in word, deed or in writing as to whether the December 2014 draft will represented her final testamentary intentions.

[53]        For over two years, Ms. Bailey did not revoke her 2008 will by word or deed. Unlike Ms. Young, Ms. Beck and Ms. Yaremkewich, Ms. Bailey left nothing, either electronic or on paper that the December 2014 draft will represented her final intentions. There simply was no expression by Ms. Bailey whether the December 2014 draft will was a final expression of her testamentary intentions.

[54]        Ms. Bailey had a number of health problems which eventually led to her death. Although both Ms. Bailey’s sister and her husband stated that her death was unexpected, those beliefs cannot be transferred or presumed to be believed by Ms. Bailey.

[55]        Ms. Bailey’s situation is similar to the facts in George. Mr. Daily instructed his accountant to write his solicitor, Mr. George, about changing his will. Mr. Daily had decided to cut out his children for the most part from his will and replace his beneficiaries with charities. Mr. George had insisted on a medical clearance confirming Mr. Daily’s mental competence. This certificate was not applied for and, within two months of giving his accountant instructions, Mr. Daily passed away.

[56]        Before the court was the accountant’s written instructions to Mr. George as to Mr. Daily’s final testamentary intentions. In George, the Appeal Court of Manitoba said:

[66]      In my opinion, these are the principles which must be applied in the determination under s. 23 as to whether or not a document or writing embodies the testamentary intentions of the deceased. Whether it is the deceased's own instrument or the notes or writing made by a third-party, the crucial question to be answered is whether the document expresses the animus testandi of the deceased - a deliberate or fixed and final expression of intention as to the disposal of his/her property on death.

[67]      At the very least, a third-party document would have to be one that had been made at the request of the deceased, or with his/her knowledge; and, in any event, with his/her awareness that the document recorded the deliberate and final expression of his/her wishes as to the disposition of his/her property on death. Another of the principles which have survived the enactment of s. 23 is that the court must be satisfied that the deceased knew and approved of the contents of the document which is presented for probate. Guardhouse v. Blackburn (1866), L.R. 1 P.&D. 109, which has not been overruled by the enactment of s. 23, is authority for that principle. Although this has been considered as a question of evidence rather than of substantive law, the rule takes on a heightened significance when the document is a third-party one.

[57]        In overturning the motion’s judge who permitted the accountant’s letter as an expression of Mr. Daily’s testamentary intentions, the appeal court stated:

[98]      While s. 23 is a remedial piece of legislation, empowering the court to give effect to testamentary intention contained in a document not otherwise conforming to the Act, the section imposes a significant onus on an applicant. I describe the onus as significant because in disposing of an application under s. 23, the court must be ever mindful that the question for determination is testamentary intention and the person who can best speak to that intention, the deceased, is not present to give evidence. The onus will only be satisfied by the presentation of substantial, complete and clear evidence relating the deceased's testamentary intentions to the document in question. Oral evidence describing the circumstances surrounding the creation of the document and the deceased's actions and words in relation to the document might well afford an applicant a better opportunity of satisfying the s. 23 onus than affidavit evidence alone.

[58]        In Sawatzky, Dr. Sawatzky had a holograph will dated March 2, 2008, which was valid. Dr. Sawatzky was diagnosed with cancer and met with his lawyer, Mr. Clay, on April 8, 2008 seeking to have the same provisions in the holograph will placed into a formal will. Mr. Clay and Dr. Sawatzky met three days later. Mr. Clay provided Dr. Sawatzky with a copy of the draft will. They did not discuss it.

[59]        Mr. Clay received messages through Dr. Sawatzky’s sister that Dr. Sawatzky was in the hospital and that he wanted to finalize his will and make substantial changes. Despite being in hospital, this was confirmed by Dr. Sawatzky on the telephone. Mr. Clay went to the hospital that evening and met with Dr. Sawatzky. Dr. Sawatzky made some handwritten changes to the draft will that his lawyer had provided to him; the changes were more in the nature of typographical corrections. Dr. Sawatzky told Mr. Clay that he believed he would live until the following June. At that time, he told Mr. Clay of 14 changes he wanted to make. Some of the changes were minor increases to existing residual beneficiaries, five people were added as residual beneficiaries and one residual beneficiary was deleted. Mr. Clay made notes on the copy of his will of the changes, except the five additional residual beneficiaries. Based on these instructions from Dr. Sawatzky on April 28, 2008, Mr. Clay prepared a type-written form of the will which was the subject of the application before the court.

[60]        It was acknowledged that Dr. Sawatzky probably did not actually see or read the type-written form of the will that Mr. Clay brought to the meeting which contained Mr. Clay’s handwritten notations, nor did the lawyer go through the will clause by clause with Dr. Sawatzky. When the lawyer attended to the hospital for purposes of executing the will, Dr. Sawatzky was heavily sedated and could not review or sign the will. Dr. Sawatzky died the next day. The court stated the following:

[27]      In the case before me, Mr. Clay, in his affidavit sworn October 9, 2008, stated at paragraph 22 that "I believe [the subject document] constitutes the deceased's final instructions and final testamentary intentions, excepting only as set out in paragraph 30 herein." In paragraph 30, Mr. Clay stated that, upon review of all of the documents and in particular the draft will he had prepared which contained Dr. Sawatzky's markings, he noted that he had made an omission in preparation of the subject document; it provides that Wesley [Sawatzky] be the executor, with Evelyn Sawatzky as the alternate, whereas Dr. Sawatzky's instructions were that they were to be co-executors.

[28]      Counsel for the applicants argues that significant weight should be given to Mr. Clay's evidence of his opinion regarding Dr. Sawatzky's intentions because that evidence was not successfully challenged on cross-examination. However, the law is clear that Mr. Clay's evidence does not decide the issue of Dr. Sawatzky's intentions; that determination must be made by the court based on all of the evidence (George, para.78).

29 In terms of the weight to be given to Mr. Clay's opinion, Dr. Sawatzky never stated to Mr. Clay that he had given his final instructions. Therefore, Mr. Clay's opinion rests on his ability to assess Dr. Sawatzky's intentions based on their history and the surrounding circumstances. In this regard, it is noteworthy that Mr. Clay did not have a long-standing relationship with Dr. Sawatzky. Rather, he met him for the first time on March 5, and their only other significant contact was on April 28. In these circumstances, Mr. Clay's ability to assess Dr. Sawatzky's intentions was, in my view, limited. As well, Mr. Clay's evidence on cross-examination reveals that he anticipated that Dr. Sawatzky may well have again changed his instructions. The relevant excerpt from the transcript of Mr. Clay's cross-examination is as follows:

461. Q And efforts to communicate with him by the time you saw him on the 29th were futile?

A Correct.

462. Q And you would have wanted to thoroughly review Exhibit G [the subject document] with him from start to finish? That was the plan?

A That would be the normal practice.

463. Q Sure. And that was what you had intended to do but for his physical condition?

A Of course what I intended to do was present the will to him so that he could review it and him being satisfied with it, then we would proceed from there.

464. Q If he were satisfied with it, the intention was to have him sign it. Correct? If he wasn't -

A If that was his instruction, if he were satisfied, yes.

465. Q If his instructions were that he wasn't satisfied with it, then you would make whatever changes would be necessary?

A Certainly follow his direction.

[61]        In Sawatzky, the court decided that the draft will could not be entered into probate. In doing so, the court said:

[31]      When I consider Mr. Clay's evidence about his opinion of Dr. Sawatzky's intentions together with all of the evidence, I am not satisfied, on a balance of probabilities, that the subject document reflects Dr. Sawatzky's deliberate or fixed and final testamentary intentions. As I have said, he never told Mr. Clay that these were his final instructions, or that he intended to make no more changes. …

[62]        As with Dr. Sawatzky, Ms. Bailey never adopted the December 2014 draft will. She never told anyone that she was satisfied with it and wanted to sign it.

[63]        I find, on a balance of probabilities, that the December 2014 draft will was not Ms. Bailey’s fixed and final testamentary intentions. It cannot be cured pursuant to s. 58 of WESA