Society of Notaries Public of British Columbia v. Law Society of British Columbia: Affirming the Limits to the Legislated Authority of Notaries to Draft Wills

In the fairly recent appellate court decision, Society of Notaries Public of British Columbia v. Law Society of British Columbia, 2017 BCCA 448, BC’s highest court was faced with the question: What are notaries allowed to draft when it comes to wills?

This case dealt with a petition filed by the Society of Notaries Public of British Columbia (the “Society of Notaries”) seeking a declaration that[1]:

Wills containing life estates, including limited life estates, and trusts in which the beneficial interest or interests vest immediately on the death of the will-maker are within the scope of section 18(b) of the Notaries Act.

For reference, section 18(b) of the Notaries Act, R.S.B.C. 1996, c. 334 provides:

  1. A member enrolled and in good standing may … (b) draw and supervise the execution of wills:

(i) by which the will-maker directs the will-maker’s estate to be distributed immediately on death,

(ii)  that provide that if the beneficiaries named in the will predecease the will-maker, there is a gift over to alternative beneficiaries vesting immediately on the death of the will-maker, or

(iii)  that provide for the assets of the deceased to vest in the beneficiary or beneficiaries as members of a class not later than the date when the beneficiary or beneficiaries or the youngest of the class attains majority

Section 18(f) of the Notaries Act limits the authority of notaries to the performance of duties authorized by an Act of the Legislature.

While authorized to perform a variety of duties, notaries are not authorized to practice law. In fact, the Legal Profession Act, S.B.C. 1998, c. 9, s. 15(1) provides that no person, other than a practising lawyer is permitted to engage in the practice of law. The “practice of law” is defined in the Act to include drawing, revising or settling “a will, deed of settlement, trust deed, power of attorney or a document relating to a probate or a grant of administration of the estate of a deceased person”: s. 1(1).

At the petition hearing[2], the Court held the Society of Notaries position could not be supported because:

[33]        A will in which the beneficial interest vests immediately on the death of the will-maker, but distribution of possession or legal title or both is postponed, is not within the scope of s. 18(b)(i) of the Notaries Act. The section requires that the entire interest is distributed immediately, not simply vested.

[38]        The reference in s. 18(b)(i) to immediate distribution of the estate means simply that the estate would be immediately and completely distributed. It does not mean that some beneficial interests will be distributed immediately, with rights to full legal title and to possession to be distributed later. Because a remainderman’s right to distribution is postponed by the life tenant’s right to possession, a will that contains a life estate does not effect immediate distribution, and s. 18(b)(i) does not authorize notaries to draft wills which include them.

The Society of Notaries appealed the decision.

The standard of review applied to the appeal was correctness.

The Court of Appeal affirmed the Supreme Court decision and dismissed the appeal. Applying the modern approach to statutory interpretation, the Court held that the ordinary sense of the expression “distributed immediately” means that the will-maker directs the assets of the estate to be immediately given out or delivered to those entitled to receive them (both legal and beneficial interest). Therefore “distributing” is distinct from “vesting”.

The Court wholly rejected the Society of Notaries’ argument that the legislature had authorized notaries to draw wills that contain life estates and trusts in which the beneficial interest or interests vest immediately on the death on the will-maker.

In conclusion, the word “distribute” and its variations refer to the act by which the legal and beneficial interests in the assets are given out or delivered to those entitled to receive them.[3]

If you have questions about what makes sense for your own estate plan, one of the lawyers in our Wills, Estates + Trusts Practice Group would be pleased to assist.

[1] A variation of this question was first considered in the matter of Law Society of British Columbia v. MacDonald, 2013 BCSC 1204, in which the Law Society sought an injunction against a specific notary to prohibit the notary from the practice of law in the area of drafting wills. The Society of Notaries intervened. The injunction was granted and was not appealed. In 2015, the Society of Notaries filed this petition.

The original iteration of the petition sought a declaration that: “Wills containing life estates and trusts are within the scope of section 18(b) of the Notaries Act”. This was later amended to the declaration as set out above.

[2] 2016 BCSC 1558

[3] 2017 BCCA 448 at para. 32