Prior to the introduction of the Wills, Estates, and Succession Act (WESA) in 2014, a document could only be accepted as a will if it met certain formal requirements: it must be in writing and signed by the will-maker in the presence of two witnesses who also must sign the document in the presence of the will-maker.
While these formal requirements were carried over in the new WESA, the legislature introduced a new power to cure deficiencies in documents or records purporting to be a will. Essentially, if the Court determines that a document or marking on a document represents the testamentary intentions of a deceased person, the Court may order under section 58 of WESA that the document or marking be fully effective as a will or part of the will.
Since then, the Court has been called on to consider whether handwritten notes can be accepted as a will or testamentary document. Bizicki Estate, 2019 BCSC 2142 is a recent addition to that line of cases.
This case follows the death of Alex Bizicki who died on September 18, 2016. Following his death, his girlfriend, Eva Chow, found three notes in the hotel room in which he resided. The notes provided the following instructions:
- Note #1, referred to by the Court as the “Information Note,” was dated November 23, 2019, and was titled “Information.” The note states that: “In the event of death, nothing to be disturbed in this room #24 by anyone, but whom I give permission to, and that is to the following: Yuet Ngor Chow (Eva).” It listed Ms. Chow’s address and phone number, and stated at that “Eva knows about this”;
- Note #2, referred to by the Court as the “Executor Note,” was titled “Executor” and stated that: “I leave my personal property, clothing, etc. to Yuet Ngor Eva Chow; she may do whatever she wishes with it.” This was followed by Ms. Chow’s name, address, and phone number. Following this, Mr. Bizicki had written the names of “Fred and Nancy A. Leak” followed by their address and the word “Executor” and a question mark. He then wrote the name and address of his brother, Mike Bizicki; and
- Note #3, referred to by the Court as the “Money Note” stated: “as to my personal estate- (all moneys) I wish this done”, after which Mr. Bizicki instructed that his funeral expenses and debts be paid, confirmed that he didn’t have debts or own property, and indicated that he wished that all his remaining monies be left to Yuet Ngor Chow (Eva). He also made reference to the Bank of Nova Scotia with an asterisk, which is where his accounts were held.
Only the Money Note was signed by Mr. Bizicki and only the Information Note was dated. None were witnessed. They obviously did not meet the formal requirements for a will.
Ms. Chow applied to the Court for an order under section 58 that the three notes be given testamentary effect. Tracey Bizicki, the personal representative of Mike Bizicki, the deceased’s brother and next of kin, opposed the order sought.
After reviewing the evidence and the applicable law, the Court came to a split decision.
The Court found that the Moneys Note and part of the Executor Note had testamentary effect as both notes expressed Mr. Bizicki’s deliberate or fixed intention with respect to the distribution of his personal property and bank accounts. The Court placed weight on the fact that the two notes were consistent in that they addressed different subjects: Mr. Bizicki’s bank accounts and personal possessions. One did not contradict the other. The language of the Executor Note expressed a clear intention with respect to Mr. Bizicki’s desire that Ms. Chow receive his personal possessions. While he used the word “wish” with respect to the distribution of his bank account, the Court found that it was more likely than not that he intended the Moneys Note to determine the disposition of his bank accounts.
However, the Court did not give effect to Mr. Bizicki’s appointment of an executor in the Executor Note. The terms of this note, which included a question mark, were not a clear expression of testamentary intention with respect to appointment of an executor.
The Court also did not find that the Information Note had testamentary effect. It did not include a statement of testamentary intention nor did it address distribution of Mr. Bizicki’s property on his death.
In reaching its decision, the Court considered Estate of Young, 2015 BCSC 182, which established that the “core issue is whether the notes record a deliberate or fixed and final expression of intention as to the disposal of the Deceased’s property on death.
The Court distinguished Bizicki from Lane Estate, 2015 BCSC 2162, in which the deceased had left seven handwritten notes on scrap paper. Mr. Bizicki’s notes were written on note paper, not scrap paper, which was not seen to be “suggestive of impermanence” as the notes in Lane Estate, were.
Bizicki serves as yet another example of the circumstances in which the Court will and will not recognize the testamentary effect of handwritten notes.