When is a will actually a will?

You come to terms with your mortality on your way to hospital for major surgery.

You never got around to having a will prepared. Can you quickly write a will while you wait to be processed? Are there special words necessary to make it legal? Can it be written on a scrap piece of paper? Does it have to be signed in some specific way?

I’m going to answer those questions by telling the true story of a Mr. Hubschi.

A detailed version of the story, along with fascinating legal analysis, is the reported decision of B.C. Supreme Court Judge Trevor Armstrong in the case of Hubschi Estate (Re), 2019 BCSC 2040 that can be accessed online here.

Hubschi was born in Vancouver on March 7, 1961, to a Swiss mother. He never knew his mother, who had put him into the care of a children’s aid society at birth. At age three, he was placed into the foster care of Mary and Jack Stack, who already had five of their own children.

It was a wonderful foster home. The Stacks treated young Hubschi as one of their children.

Armstrong described Hubschi’s relationship with his foster siblings: “There is no doubt that Mr. Hubschi had a close attachment to all members of the Stack family and considered them, as they did him, siblings in this tight knit family relationship”.

But Hubschi was never adopted. He never married and had no children of his own.

In the spring of 2017, at the age of 56, he underwent a surgery and passed away 22 days after being discharged from hospital.

At the time of his death, he had approximately $175,000 in savings and some other assets.

I will devote a future column to what happens to your assets if you die without a will. There is a set of rules but in Hubschi’s circumstances, his estate would have gone to extended relatives in Switzerland who he never met or had a relationship with.

His foster siblings searched his apartment unsuccessfully for a will. They managed to unlock his computer and found a file called “Budget for 2017” that appeared to have been modified on the day of his death.

Armstrong described Hubschi’s circumstances at the time: “…at that time he was physically unable to move around due to pain in his leg and was most likely confined to his apartment due to his post-surgery complications.”

The computer file included the following words: “Get a will made out at some point. A5 – way assets split for remaining brothers and sisters. Greg, and at or Trevor as executor.”

That’s an exact quote, you can read it for yourself in paragraph 15 of the court decision.

Circling back to the scenario I presented at the beginning of this column. There are no special words. It’s was not even in print, let alone on a scrap of paper, and of course it’s unsigned.

British Columbia law does have some specific requirements for a will to be valid. The computer document did not meet those requirements. But B.C. law allows a judge to “cure” a defective will if the judge is satisfied it represents the deceased person’s testamentary intentions.

After considering all the circumstances, Armstrong was satisfied the computer file contained Hubschi’s testamentary intention that his estate be divided five ways between his brothers and sisters.

The court order said: “[60] I order that the document prepared by Mr. Hubschi will be fully effective as though it had been made as the testamentary intention of Mr. Hubschi and that probate of the will be granted to Gregory Kenneth Stack on the basis each of the Stack children will receive a one-fifth interest in his estate”.

So yes, you can quickly write a will on a scrap of paper on your way into surgery without any magic words and without following proper signature/witness protocols and that scrap of paper will be “cured,” provided a judge is satisfied that what you wrote represents your testamentary intentions.

Please read my next column, when I share the magic required for your handwritten, scrap-of-paper will to be valid and not require your beneficiaries to go through the uncertain and expensive process of asking a judge to “cure” it.

This article is written by or on behalf of an outsourced columnist and does not necessarily reflect the views of Castanet.