Inheritance law tested by Hollow Tree defender
In its first decision involving the controversial new Wills, Estates and Succession Act, B.C.’s top court has emphasized the broad discretion the law confers on judges.
The Court of Appeal upheld a lower-court ruling that rejected a 93-year-old widow’s note, handwritten a few months before her death, entitled “This is my last Will,” in favour of a much older, professionally prepared division of her $1.3-million estate.
The case had the added fillip of seemingly involving the new attorney general.
“I hope to see Mr. David Ebby (sic) in person to write this will,” Eleanor Lena Hadley added in her spiral-bound journal on Sept. 1, 2014. Eby, however, said he had never in his legal career prepared a will and didn’t speak to her.
She became ill soon after she made the notes and died March 6, 2015, with no immediate family.
Hadley was an extraordinary individual, a key player in the fight to save the Hollow Tree in Stanley Park.
A longtime resident of the West End, she was a spirited activist and repeat candidate for the park board.
Virginia Maziak, Anita Berecz, Grace Gagner and Carol Fitzsimmons — four nieces in Ontario — were the main heirs under Hadley’s 2008 will.
But in the 2014 notebook, Bruce Macdonald, an elderly historian, and Daniel Pierce, a 31-year-old filmmaker, friends of Hadley’s from the successful struggle to save the Hollow Tree, were named as beneficiaries along with one niece, Maziak.
Hadley met Macdonald at a park board meeting shortly before she completed the 2008 will and met Pierce soon after. Macdonald, author of Vancouver: A Visual History, and Hadley were part of Pierce’s 50-minute presentation on the Hollow Tree that aired on the CBC documentary channel and the Knowledge Network.
The 1996 rules governing wills required that they be in writing, signed in the presence of each other by the testator and two witnesses, neither of whom nor their spouses could inherit as a beneficiary.
The reason was simple — most forged-will cases involved handwritten documents, known as holographs, that were putatively signed by the deceased without witnesses.
Under the old Wills Act, testators were obliged to comply strictly with the formalities in creating, revoking, altering or reviving a will for it to be valid. But those hard-and-fast rules sometimes led to a will-maker’s intentions being defeated for no good reason. The updated 2009 law provided a legal remedy but the jury is still out on it.
Several decisions since the act came into effect March 31, 2014 have allowed wills that previously would have been rejected to be probated despite irregularities such as the lack of witnesses.
In one case, the B.C. Supreme Court ruled a suicide note was valid as a will.
In another case, a judge accepted three clipped and stapled together documents — two handwritten and the other a funeral-arrangements brochure, all unsigned and unwitnessed.
Those decisions were possible because the act’s far-reaching Section 58 confers broad discretion on judges to ignore testamentary formalities.
Judges can decide a “record or document or writing or marking on a will or document” is fully effective despite not meeting the statutory requirements.
“This appeal represents this court’s first opportunity to consider s. 58,” Justice Gail Dickson wrote in the Hadley case, supported by colleagues Peter Lowry and David Harris.
“In my view, the (lower court) judge’s findings and the record below reveal no palpable or overriding error. Her conclusions on Ms. Hadley’s testamentary intentions are reasonable, entitled to deference and should not be disturbed.”
In her 2014 journal, Hadley described a frightening episode of bright flashes, dizziness and confusion.
The experience caused her to write “my last Will”: “As of this time in my life I leave all my estate (my money in bonds & my apartment #205 Seacrest Apts. Ltd. Company — self owned to the following people who were kind to me (1) My niece Virginia Maziak who lives in Windsor, Ontario. Virginia (Ginger) was continually kind to me. (2) Bruce Macdonald ... because he contributed so much to save the Hollow Tree in Stanley Park and was kind to me. (3) Daniel Pierce ... a young Film Producer who worked so hard and was kind to me.”
Justice Elaine Adair concluded last year that the journal was authentic but “my last Will” did not represent Hadley’s final intentions — there were no witnesses, she didn’t expressly revoke her earlier will and she didn’t tell anyone about the 2014 one.
Adair was troubled by Hadley’s confusion when composing her notes, her keeping it a secret and her subsequent failure to explain why she was cancelling previous bequests to her family.
“Hadley had a very large estate, one that could certainly accommodate generous gifts to Mr. Macdonald and Mr. Pierce, without completely disinheriting the beneficiaries (other than Ms. Maziak) under her 2008 will,” the justice explained.
She endorsed the 2008 will prepared by a Vancouver lawyer splitting the estate into six shares: two to Maziak, one each to Berecz, Gagner and Fitzsimmons with the last equally divided among three other beneficiaries.
Justice Dickson agreed with the lower court that everyone’s legal expenses should be paid by Hadley’s estate, as her conduct triggered the litigation.