Two Planning Traps for Owner-Managers

Consider a familiar file. The client owns the voting shares of a British Columbia operating company, holds business real estate personally, and spends winters in the United States. U.S. counsel prepares a revocable trust and a “pour-over” will. The client intends the B.C. will to continue governing B.C. assets, but no one reconciles the revocation language across the two jurisdictions. Back in B.C., an updated will is drafted but never executed. A health event follows, and the family assumes the remaining steps can be completed after capacity is lost.

Recent B.C. decisions show why that sequence is risky. Two issues recur: inadvertent revocation in multi-document plans, and the assumption that incapacity leaves time to implement succession mechanics.

Revocation and coordination: when one document undermines the rest

In complex estates, the principal drafting hazard is often not an unclear gift; it is an unintended revocation. A revocation clause that is routine in a single-jurisdiction will can become a litigation trigger when the client has multiple wills, cross-border instruments, or unfinished drafts.

Re Estate of Church, 2024 BCSC 2490, is a cautionary example in “snowbird” planning. A later California “pour-over” will contained broad revocation language that put a prior B.C. will at risk, even though the planning objective was a jurisdictional split: U.S. assets under the U.S. plan, B.C. assets under the B.C. will. The Court rectified the California will under the Wills, Estates and Succession Act, or WESA, s. 59, to confine the revocation effect so the B.C. plan for B.C. assets could continue to operate. The take-home point is procedural as much as doctrinal: coordination failures convert what the client thought was routine planning into an evidence-heavy, court-driven repair exercise.

Siebert Estate (Re), 2025 BCSC 617, illustrates a related cross-border risk. A later B.C. will interacted with an earlier German joint will in a way that resulted in an intestacy outcome for the surviving spouse’s estate. For owner-managers, the cost of that outcome is not limited to distribution. Uncertainty about who takes, and when, can quickly turn into uncertainty about who controls votes, director appointments, and the authority to make time-sensitive corporate decisions.

Cooper Estate, 2024 BCSC 218, shows the domestic variant that practitioners should treat as a specific danger. An unsigned draft will was relied on under WESA, s. 58 to give effect to its revocation clause as a “record” of fixed and final intention to revoke the earlier executed will. The remainder of the draft was not accepted as a complete replacement dispositive scheme, with the result that the estate fell into intestacy. Section 58 is often discussed as a tool to “save” a testamentary intention; Cooper is the reminder that it can also succeed in revoking an existing will without successfully installing a new one.

The preventative work is practical and unglamorous. Treat the estate plan as an integrated system: wills, foreign instruments, corporate records, shareholder agreements, and signing authorities. In multi-will and cross-border files, each instrument should state what it governs and what it does not revoke, and the revocation clauses should be harmonized across the entire set. Drafts require strict control. If an update is not executed, the file should contain a clear record that the existing executed will remains operative and that the draft is not to be relied upon.

If an unintended revocation issue is discovered after death, timing matters. Rectification under WESA, s. 59 is subject to a 180-day post-grant limitation period, absent leave.

Incapacity is not a second window for succession planning

Owner-managers and families often assume that if capacity is lost, an attorney under an enduring power of attorney—or a committee or the Public Guardian and Trustee (“PGT”)—can implement the succession plan later. That assumption is legally fraught.

In Uhlving Estate v. Public Guardian and Trustee of British Columbia, 2024 BCCA 397, the Court of Appeal upheld the PGT’s decision not to pursue a risky wills-variation claim on behalf of an incapable adult. The decision reinforces a core constraint: substitute decision-makers are mandated to protect the incapable adult’s interests, not to take speculative litigation steps primarily to increase what adult children may eventually inherit.

There is an important nuance worth acknowledging. An attorney under the Power of Attorney Act may have more practical room than an institutional committee to take steps quickly and manage the adult’s affairs without court supervision. Even so, attorneys remain constrained by statutory duties and limits (including best-interests' obligations and restrictions on transfers and gifts), and a committeeship can displace the attorney’s role. In short, “the attorney will fix it later” is not a reliable succession plan.

For owner-managers, the operational risk is immediate. Incapacity can freeze a business if the owner is the only signing officer, the only director with practical knowledge, or the person whose authority counterparties require. The solution is to treat incapacity planning as business continuity planning, completed while capacity is clear: director and officer succession mechanics, workable banking mandates, and contract-level signing authority that can operate the day after an incapacity event. Those mechanics should be aligned with the estate plan so control transitions predictably on incapacity and on death.

The Owner-Manager Checklist

• Treat revocation clauses as high-risk terms in multi-will and cross-border files. Harmonize them across every instrument in the plan.
• Build and maintain a one-page “document map” listing all wills, foreign instruments, and the corporate governance documents that affect control.
• Control drafts aggressively. An unexecuted update can create litigation risk and, in a s. 58 context, may revoke a prior will without replacing it.
• If an unintended revocation is discovered post-death, assess WESA, s. 59 rectification immediately and calendar the 180-day post-grant deadline.
• Do the continuity work while capacity is clear: successor directors/officers, banking mandates, and third-party acceptance should be settled before the crisis.