2013 will takes precedence over note written in 2017 that changes who inherits and amounts
A British Columbia Supreme Court judge has decided in favour of the BC Society for the Prevention of Cruelty to Animals and against the closest relatives of a 99-year-old woman who left the bulk of her estate to the animal shelter and rescue organization in a 2013 will.
Eleena Violette Murray died on Oct. 4, 2017, leaving a will dated January 2013. In it, she gives named relatives specified amounts of money, with the “rest and residue” going to the SPCA.
“Ms. Murray had no immediate family. It is entirely possible that she chose to benefit a charity that reflected her love of animals as opposed to extended family members,” Madam Justice Heather MacNaughton wrote in Henderson v. Myler. “The question is what Ms. Murray subjectively intended, not what an average person would choose to do with their estate.”
However, an unsigned note from 2017 found in her lockbox indicates that, if valid, Murray meant to increase amounts given to some family members named in 2013 will; delete gifts to others; add a friend and change the amount bequeathed to the SPCA to $100,000.
Dividing the estate in this manner would still have left a shortfall of about $1.4 million based on the 2020 sale of Murray’s Kitsilano home.
As a result, Justice MacNaughton wrote that if the note is a valid testamentary document, that residual amount would pass on an intestacy to the four plaintiffs in the case - nephew Brian Henderson, nephew Ron Tekano, the estate of nephew Daniel Henderson, and the estate of niece Verna Hancock.
The plaintiffs argue that the note, primarily in Murray’s handwriting but with other writing and cross-out marks in different pen colours, was finalized at a meeting on May 4, 2017. Joyce Myler, Murray’s friend of 60 years and a co-executrix, and Kim Crawford, another good friend, were at the meeting. (Myler and Crawford did not receive anything under the 2013 will or the 2017 note.)
The plaintiffs also argue that Murray did not know or approve of the residual gift to the BC SPCA in her 2013 will. However, in her reasons for deciding that the 2013 will was valid, Justice MacNaughton ruled: “Although the plaintiffs make much of the fact that the size of the gift to the BC SPCA in the 2013 will was unusual and inconsistent with the average testamentary gift to the charity, it is not determinative in the analysis.”
In the decision, Justice MacNaughton painted a picture of Murray as a senior who was “clearly remarkable for her age.” She was a character loved by friends and family “despite having strong opinions, being bossy, and knowing her own mind.” She loved the theatre and the arts and enjoyed dressing up. Her birthdays were important celebrations, and she was planning her 100th birthday when she died and had been doing so since she turned 96.
Murray also loved animals, wild and domesticated. She was a dog owner and welcomed her friends’ dogs into her home. For many years, and well into her nineties, she walked from her home to the duck pond at Jericho Beach to feed the birds, particularly the ducks and the rabbits and squirrels. A round trip took her between one and a half hours to two hours. After she moved into a long-term care facility, where she spent the last months of her life, Murray visited a horse that lived behind the home and fed it carrots.
Justice MacNaughton added, “Ms. Murray was fiercely independent and was not someone to tangle with. She was not afraid to disagree with people and was described as feisty. She made friends and kept them, but she could be unforgiving if someone crossed her."
In the 2013 notarized will, Murray gave $60,000 to her niece Verna, $60,000 each to two grandnieces, $60,000 to a grandnephew, $40,000 to nephews Ron Takano and Daniel Henderson, and $40,000 each to three relatives of her deceased spouse. The residue of the estate was to go to the SPCA. Nephew Brian Henderson, one of the plaintiffs, was not mentioned in the will.
The court also heard that on May 4, 2017, Murray’s 99th birthday, Murray’s executrix Myler and friend Crawford took her to lunch. During the meal, Myler discussed potential changes to the will, given how the value of Murray’s home had increased since the 2013 will when it was assessed at about $1 million.
At that meal, the note, if a valid document, would make the following amendment: increase to $100,000 the gifts to niece Verna, the two grandnieces and grandnephew; revoke the gifts to nephews Ron and Daniel, as well as the three relatives of her deceased spouse; reduce the gift to the SPCA to $100,000, and add a gift of $40,000 to Murray’s friend John Basich. Nephew Brian again was not mentioned.
The specified amounts in the note total $540,000, which leaves about $1.4 million in the estate. Murray’s home sold for $1.9 million in March 2020, and as of Oct. 16, 2020, Murray’s estate lawyer held more than $72,000 in trust and $1,901,434.42 in a term deposit. After various fees, about $1.85 million is left for distribution.
Taking all the evidence into account, the judge wrote in her decision that, on a balance of probabilities, Murray had the requisite testamentary capacity to confirm the content of the note on May 4, 2017.
Crawford and Myler spent a week with Murray in early May 2017. “They saw her every day, and . . . had the opportunity to observe her mental state during that week,” Justice MacNaughton wrote. “Their evidence indicates Ms. Murray was alert, lucid, and actively engaged in the conversation about the note and gave specific instructions for adding names, crossing off names, and changing the amounts.”
However, Justice MacNaughton also wrote that “there is no evidence” that Murray appreciated the effect the note would have on the disposition of her estate, particularly the impact of not dealing with the remainder of the estate after specific amounts were bequeathed.
She wrote: “Because the note does not contain a residue clause, what remained in Ms. Murray’s estate, after the specific bequests were paid to family members, passes on intestacy to the plaintiffs. Two of the plaintiffs, Ron and Daniel, were specifically crossed out on the note, and Brian was not included at all.”
MacNaughton added that if the note were a valid will, “75 per cent of Ms. Murray’s estate goes to three individuals whom Ms. Murray expressly did not wish to benefit. “It is difficult to see how Ms. Murray could have had [the requisite] knowledge and approved of this result."
The judge also pointed out that there were “problems” with the note, including:
- It is impossible to conclude when the note was authored, though it must have been prepared before Mar. 12, 2017, as Murray did not return to her home after that date. It was found by Myler and Crawford in early May, before the birthday lunch.
- The note is untitled, unsigned, and not witnessed.
- The note appears to have markings made by different people as they are in various ink colours. It seems likely that Ms. Murray wrote all of the names, although Myler’s affidavit says she completed Dan Henderson’s surname.
- Myler thought the note had one line through the names, which were crossed off when she first saw it, and that she added other lines as she discussed the names with Ms. Murray.
- Some names were crossed off in blue ink, which Murray may have done, although this was not clarified with Murray at the lunch meeting. Myler said she crossed off the names on the note in black ink.
- Myler and Crawford’s evidence is that not all the names on the note were read out to Murray.
- It was also not clear who increased the amount of the gifts from the 2013 will. Both Myler and Ms. Crawford testified the original monetary quantities might have been written by Murray and the changes also made by her, or that Myler made the changes at Murray’s direction.
- Myler did not ask Murray why Brian had been left off the note. Brian and some relatives testified that, on occasion, Murray confused Brian and his brother Dan. Myler said in her deposition that Ms. Murray often called Brian when she meant Daniel.
- Brian testified that Dan was “estranged” from the family, and he did not believe Murray was close to Dan. Crawford testified she found it “real questionable” that Dan was written down and not Brian. Nonetheless, Murray appeared to know who Dan was when she executed the 2013 will, as the checklist she provided to the notary accurately recorded that he resided in Lac La Hache.
The lawyer for the SPCA would not comment on the case or speculate whether it would be appealed. However, the court ruling notes the SPCA agreed it would honour the $40,000 bequest to Murray's friend John Basich.
Daniel Paperny an estate litigation lawyer with WEL Partners in Ontario says Henderson v. Myler is an interesting case in that it demonstrates that a handwritten document can be accepted as a testamentary document, as long as it meets certain criteria. In Ontario, under the Succession Law Reform Act, and under similar legislation in B.C, such a document can be accepted if it is signed by the testator, and can be verified as being only in that person’s handwriting. It does not have to be witnessed.
“So you can write something on a cocktail napkin or a piece of paper and store it in a safety deposit box,” Paperny says, adding these documents are called “holographic” wills, “And if somebody finds it after you pass away, and it's clear that it's in your handwriting and signed by you, then it can be accepted as a valid document.”
Paperny adds that, while not a statutory requirement, case law has determined that it must also be determined that the holographic will is what the testator wanted to happen with their property. “It has to be accepted as being the full and final expression of the intention of the testator.”
He notes the judge in the B.C. case spent a lot of time in her decision looking at whether the note reflected Murray’s true intentions. For example, if the note were to be accepted, three people that were specifically crossed off or not mentioned in it (Dan, Brian, Ron) would end up being among the inheritors of most of her estate (the 75 per cent left after the specific bequests). The judge ruled that, based on the totality of the evidence, that could not have been Murray’s intent.
The lesson from this case, adds Paperny, is that it’s important “not to tempt fate” by using holographic wills, even though they can be valid documents under certain circumstances. It is better to consult with an experienced estate planning lawyer or paralegal when making a will and then update it regularly, especially if the assets involved, like real estate, could fluctuate in value.
“If you rely on a napkin or something scribbled on a piece of paper, you are begging for litigation,” he says. “Because it's easily challenged, and difficult to prove that it is a valid expression of your testamentary intent.”