Thierman Estate v. Thurman

The recent decision of the British Columbia Supreme Court in Thierman Estate v. Thurman illustrates why it is of the utmost importance to insure that an original signed will (that is, not a photocopy, electronic copy or some other copy that does not contain the original signatures of the testator and witnesses) be kept in a safe place, and that others besides the testator knows of its location.

The deceased, George, died in 2010 at the age of 92; his wife had died in 2008, and he had seven children, all in their 40s or 50s at the time of George’s death. The two youngest children, David and Andrew, are twins and Andrew appears to have severe mental health issues, apparently having been institutionalized because of schizophrenia after George’s death. Both David and Andrew lived with their father, George, in his home for at least 20 years prior to his death with neither of them having any income or receiving benefits. David had helped his parents while living with them, especially as they aged, with chores around the house, caring for them when they were ill, and other tasks.

George had a will drafted for him by a lawyer in 2006 in which he left his entire estate (valued at almost a $1 million) for David’s benefit during his lifetime, meaning that the trustee of the estate (who is another son of George) could invest or use the assets in the estate for David’s care until David dies, after which whatever remained was to be divided equally among his other children. The lawyer told George to put the will in his safety deposit box, and he told her that he did and gave her the address of the branch where the box was located (records from the bank also confirmed George’s attendance at the box shortly after the will was signed). By all accounts, George was very meticulous when it came to organizing and storing important documents.

In 2009 George became ill; at that time he told his son in law of his will, that in it he had left his estate to David who would be able to care for himself, but that he left nothing to Andrew and thought that he would become a ward of the state. During that conversation George’s brother in law told him that it was likely that the will would be challenged on behalf of Andrew, and that his estate would be used to pay for Andrew’s care because he could not care for himself and George had been supporting him for many years. It was recommended that a trust be set up for Andrew, but George never did so. At the same time, George had also told his brother in law, and others, that David had not caring for him properly for quite some time, and in fact George’s other children did have to assist in his care because David was not doing so, even though he still lived with George.

Approximately 6 months after becoming ill George was scheduled for surgery: on the day before he was admitted to hospital for this surgery he attended at his safety deposit box. George suffered complications as a result of the surgery and died three weeks later; during the time between his surgery and his death, while he was in hospital, his son attended at his safety deposit box (using a power of attorney) did not find the will, but did see other important documents in it. After George’s death his family made an extensive search for the original will, but could only find a photocopy of it in a drawer in George’s home.

The court application was originally made by the executor of George’s estate because the original will could not be found, in order to determine whether or not the copy of the will that was located could be used in substitution. The court decided that, based upon the facts presented, George had deliberately destroyed his original will (a more detailed account of the facts is set out in the court decision), and therefore his estate would be distributed on intestacy (that is, as if he did not have a will) which, in this case, would be mean that it would be shared equally among his children.

This case illustrates the importance of insuring that an original signed will is stored in a safe place. Often, clients will give me a photocopy of a will thinking that this is sufficient to probate an estate, but only the original signed will is sufficient. If the original will is not found and presented then the assumption is made that it is not valid unless it can be proven in court that despite the fact that the original is not available it was still the testator’s intention to pay out the estate in accordance with that will. In this case, the court determined that based upon George’s statements, actions, and other factors, that he had deliberately destroyed his will. In other cases, a court may decide that the testator still wanted the provisions of a will that cannot be found to govern his or her estate if, for example, the will was destroyed by accident (such as in a fire) or if the testator had told others about the will and that he or she wanted it to govern the estate. Each case is decided on its own facts, but in every case the presumption is that, unless an original signed will is located, then the estate to be distributed as if a will did not exist unless proven otherwise.

Although it can sometimes be awkward or difficult, a person who is elderly or otherwise may be ill should be questioned as to whether or not he or she has a will, and if so, where the will is located, if this information is not otherwise known by family members. The failure to have an original signed will may end up costing an estate additional legal costs that could have been avoided, whether those are necessary to prove that a copy should stand in its place, or not. The best proof that a will should govern is to have the original.