Will Making: Blog: Gifts to A Witness – Wiped Out or Salvageable ? – Part 2

When the Wills Estates and Succession Act (WESA) was introduced, it replaced a number of pieces of legislation including the Wills Act. One of the substantial changes was that under the Wills Act, gifts to a witness which were made in a Will was not valid. Section 43 of WESA provides a mechanism for the recipient of a gift to ask the Court for an Order that the gift be upheld.

In part 1 of this series, we discussed the decision of Madame Justice Adair in  Re Estate of Le Gallais,  2017 BCSC 1699. Madame Justice Adair set out the respective positions of the parties (some opposed and some consenting) and then made the following ruling:

[19] I have concluded that the testator, Ms. Le Gallais, did in fact intend to make a gift to Ms. Isherwood.

[20] Ms. Isherwood and Ms. Le Gallais had known one another for about 40 years. In 1994 – so this is in the year before Ms. Le Gallais’ Will was prepared – Ms. Le Gallais   retained Ms. Isherwood to act for Ms. Le Gallais in relation to the legal work associated with Ms. Le Gallais’ mother’s estate.  Ms. Le Gallais was the sole beneficiary under her mother’s estate and inherited about $350,000.

[21] In those circumstances, I think it is reasonable for me to conclude that by the time Ms. Le Gallais executed her Will in January of 1995, she would have had some idea– although not necessarily with respect to the details or the precise scope – but she would have had some idea that there would be legal expense associated with the work that Ms. Isherwood was doing in relation to her mother’s estate.

[22] In that light, in my view, it is reasonable to conclude that Ms. Le Gallais, in executing her own Will in January 1995, would have recognized the probability that there  would be legal expense associated with legal work in relation to her own estate, and that she intended that Ms. Isherwood should be compensated for the legal work done.

[23] There is evidence before me that at the time the will was signed in 1995 and  until she retired, Ms. Le Gallais was a businesswoman.  She worked for almost 40 years for the Bank of Nova Scotia, and I conclude that, given that background, she would have been more than capable of fully appreciating the terms of her own Will which, as I say, was very simply drafted.

[24] Based on Ms. Isherwood’s evidence, at the time the Will was signed, it was read to Ms. Le Gallais and she had no questions in relation to the contents of the Will.

[25]  During submissions this morning by Ms. Newman – and I am not sure that this was the intention – but it almost seemed that the submission was to the effect that Ms. Isherwood was drafting the Will without any input from her client.  There is certainly no  basis in the evidence for me to conclude that, and, in fact, I would conclude the opposite, that Ms. Isherwood drafted the Will based on the instructions that she received from Ms. Le Gallais.

[26] After the Will was signed, Ms. Le Gallais and Ms. Isherwood continued their relationship and, in the last few years of Ms. Le Gallais’ life, Ms. Isherwood took on more responsibility for dealing with Ms. Le Gallais’ property and affairs and, among other things, was appointed by Ms. Le Gallais to act as her power of attorney.  In my view, that illustrates the trust and confidence that Ms. Le Gallais imposed in Ms. Isherwood and provides further support for my conclusion that, by the Charging Clause,  Ms. Le Gallais intended to make a gift.

If you are involved in Estate Litigation involving gifts to a witness or anything else, contact the Kushner Law Group today to schedule a consultationPage Not Found

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