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w w w . C A N A D I A N L a w y e r m a g . c o m O c t O b e r 2 0 1 4 43 original. Morton challenged that in a lawsuit and won. Quebec's Civil Code says notarial wills can only be revoked by the cre- ation of a new will, or by the signing of a testamentary document that is incon- sistent with the original will. During his separation proceedings in 2009, Christian's family lawyer advised him to tear up copies of his will, as a tem- porary measure until he'd had time to make a new will in B.C. Christian then allegedly destroyed his copies, although the court found no proof he had actually done so. Even if there was physical proof, Johnston said it wouldn't carry "much weight." That's because notarial wills simply can't be revoked by destruction. Johnston said even though B.C., and most other provinces, accept certified copies of notarial wills for probate; those copies do not carry that same status for the purposes of revocation. "I think it's the right decision," says Ian Hull, an estates lawyer with Hull and Hull LLP in Toronto, who wrote in a blog about the ruling: "Quebec ex- patriots take heed: destroying your copy of your Notarial Will will not prevent La belle province's original from governing the administration and distribution of your estate." The central issue, says Hull, is the prevention of fraud. "The sanctity of the original document is crucial with every will," he says. "I don't know a prov- ince where the court would have gone any differently in this case." Yet Hull also says the rules may be too strict, especially when it comes to mod- estly sized estates. In this case, Christian didn't leave behind clear evidence of his intent. But what if he had? What if he had placed a torn-up copy of the notarial will in his files, or left behind a signed statement that he intended to execute a new will before his death? More impor- tantly, why shouldn't Quebec expats be allowed to revoke their notarial wills by destroying a copy? For that matter, why shouldn't any Canadian be allowed to take a copy of their will — rather than the original — and clearly indicate that they've renounced it. "As a concept, it's not abhorrent," says Hull. "I think there's a certain amount of access to justice that's at play here . . . When you have modest estates, why is it that we have these kinds of arcane and draconian rules? Maybe we should have more mod- est revocation expectations." In many provinces, there's already a loosening of the rules around how wills are executed. Although Ontario still interprets the rules strictly, the courts and statutes in Nova Scotia, Manitoba, Saskatchewan, and B.C. are now allow- ing "substantial compliance" regarding witness signatures — it is no longer a fatal blow to a will if the document hasn't been properly witnessed by read Morton v. Christian at courts.gov.bc.ca/jdb-txt/ Sc/14/13/2014bcSc1303cor1.htm 1 Adelaide Street, East, Suite 2501, Toronto, ON M5C 2V9 balesbeall.com 8VaaZYidi]Z7Vg/BVc^idWV'%%.!DciVg^d'%&' Jc^kZgh^ind[LZhiZgcDciVg^d'%%-A#A#7 Jc^kZgh^ind[L^cc^eZ\'%%(7#6#Eda^i^Xh the Raising Bar Practice Areas: Family Law, Civil, Commercial and Estate litigation Richard Diamond Email: rdiamond@balesbeall.com Direct Line: 416.203.4535 LinkedIn: ca.linkedin.com/pub/richard-diamond/60/33a/b35/ ntitled-8 1 2014-09-10 12:28 PM step.ca 1.877.991.4949 Canada Society of Trust and Estate Practitioners STEP Canada, the leading educator of Canadian trust and estate professionals, is pleased to announce its new online certificate program, designed to enhance the knowledge and performance of Canadian estate and trust professionals: s trust officers s junior trust officers s estate and trust administrators s law clerks s junior associates s paralegals s wealth management sales s administrative assistants representatives s retail bankers CETA – THE INNOVATIVE EDUCATIONAL OFFERING FOR CANADIAN ESTATE AND TRUST PROFESSIONALS Course 1: Foundations of Estate and Trust Administration Course 2: Advanced Topics in Estate and Trust Administration Course 3: Estate and Trust Taxation CETA Certificate Examination Successful students will emerge from the CETA program with: a certificate of completion from STEP Canada, which denotes excellence in the industry; professional recognition as a specialist in estate and trust management; a specialized understanding of estate and trust management, extended opportunities for employment and advancement; an enhanced ability to serve clients; and international recognition within STEP. For full details: STEP CANADA'S CERTIFICATE IN ESTATE AND TRUST ADMINISTRATION ntitled-1 1 2014-09-15 10:18 AM

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