Canadian Lawyer

October 2014

The most widely read magazine for Canadian lawyers

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42 O c t O b e r 2 0 1 4 w w w . C A N A D I A N L a w y e r m a g . c o m LEgaL rEport/willS, TRuSTS, & eSTATeS J ohn David Christian's final wish- es may not have been fulfilled by the justice system when his will was litigated in British Columbia earlier this year. But the argument over his intentions — whatever they were — resulted in one clear legacy: Thanks to Christian, thousands of Canadians, and perhaps many estates practitioners too, now have a cautionary reminder about notarial wills. If you make a will in Que- bec and move elsewhere, you can't take the original document with you. And you can't revoke it by tearing, burning, or otherwise destroying a copy, claiming the original was out of reach. So said Supreme Court of British Columbia Justice Robert Johnston in the July 14 decision in Morton v. Chris- tian, likely the first case in Canada to address the destruction of notarial wills. The ruling has caught the attention of lawyers who say it highlights both the need for greater awareness about this sometimes forgotten issue — and also the possible need for reform. "I don't know whether the formalities of the notarial will are broadly known of out- side of Quebec," says Coll Gordon, a lit- igator with the B.C. firm McKimm and Lott, who argued Morton v. Christian for the plaintiff. Gordon says he knew very little about notarial wills when he began researching the case. Lynne Butler, a St. John's lawyer who writes the Estate Law Canada blog says, "Definitely, more education is needed on this, among the legal profession and the public." Unlike formal wills made in other provinces, Quebec wills are creatures of the Civil Code; they're made before a notary, who keeps the original and registers it with the provincial registry. This means there is no chance of the will being lost, and it avoids the need to probate the will in Quebec. It also means notarial wills — unlike formal wills, which are normally kept by the testa- tor or their lawyer — can't be revoked by tearing up or destroying the original document. John Christian made a notarial will while living in Quebec in 1991, nam- ing his wife Lorraine Morton as sole beneficiary. Later that year they moved to B.C., separating in 2009. When Christian died in 2011, no will could be found among his possessions. His assets passed to members of his family, who claimed Christian had revoked his notarial will by tearing up a copy of the A cautionary will tale If you make a notarial will in Quebec and move away, you can't take the original with you and it's really hard to revoke from a distance. by richarD Foot pETE ryAN

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