Quinn Estate

In the 2019 case of Quinn Estate v Rydland,[1] the British Columbia Court of Appeal (the Court) held pour‑over clauses to be invalid on the basis that such clauses allow a testator to make unattested changes to their wills. Quinn Estate involved well‑known National Hockey League player and coach Pat Quinn, who held both US and Canadian citizenship, was resident in British Columbia when he died, and whose will had been drafted by his US lawyer. The Court found the disposition of the residue in Quinn’s will to the amendable and revocable Quinn Family Trust was invalid and, consequently, the residue was to be distributed under British Columbia intestacy rules.

The Court refused to invoke the doctrine of incorporation by reference to incorporate the revocable, amendable trust, finding that since the trust was amended after the execution of the will, the test for the doctrine of incorporation by reference was not met. In addition, it was held that the doctrine of facts of independent significance could not be applied to pour‑over clauses because it would dispense with the formalities in the Wills, Estates and Succession Act (the Act), holding that the ‘curative’ provision of s.58 of the Act could not assist.

Further judgment

Recently, pour‑over clauses have been considered further by the courts in British Columbia, Nova Scotia and Ontario.

In Waslenchuk Estate,[2] the testatrix settled a revocable and amendable inter vivos trust and executed a will while living in Connecticut. Upon her return to British Columbia, where she was domiciled on her death, she did not update her will. Her will provided that the residue of her estate be distributed to the trust. The Supreme Court of British Columbia followed the decision in Quinn Estate, finding that even though the trust was not amended after the execution of her will, the pour‑over clause was nonetheless invalid on the basis that it was a distribution to an amendable, revocable trust.