rectification and validation of wills and...
TRANSCRIPT
RECTIFICATION AND VALIDATION
OF WILLS AND CODICILS
INTRODUCTION
The Wills and Succession Act introduced major changes to the law in Alberta with respect to the
authority of the courts to validate wills or gifts which would have failed under our former legislation (the
Wills Act), and to rectify errors. Our new provisions are similar to those which have been adopted in
several other provinces and which are generally described as a move toward acceptance of ‘substantial
compliance’ with the formal requirements for the execution of a will rather than a requirement for ‘strict
compliance’. This paper will examine our new legislation and some of the court decisions which have
considered them. We will also review several decisions from other provinces that have similar
legislation.
The general principle is that the new sections may allow the court to give effect to the testamentary
intentions of the testator despite imperfect compliance with the required formalities, if:
- the level of compliance meets the minimum requirements of the particular WSA section, and
- the court is satisfied that the document reflects the fixed and final testamentary wishes of the
testator.
A note of caution: as Dickson J of the Supreme Court of BC said “... a determination of whether to
exercise the court’s curative power with respect to a non-compliant document is inevitably and intensely
fact-sensitive.” All of the cases in this area will, by definition be fact specific, but hopefully we can find1
some guidance in the general principles which have been established.
Historical Background
As always, to understand the new legislation, it is helpful to review where we were before 2012, and to
review a few basics.
The Estate of Young, 2015 BSSC 182, at para. 341
One of the most fundamental requirements for a document to be testamentary is the manner of its
execution. Feeney defines a will as a juridical act that is:
a. intended to have disposing effect,
b. intended not to take effect until after death and to be entirely dependent on death for its
operation;
c. intended to be revocable (and revocable in fact), and
d. executed in accordance with the wills legislation of the appropriate province or territory.2
Feeney goes on to say that historically, the relevant sections of each provincial statute have basically
the same three requirements for due execution as the original English Act had, that is to say:
(1) it shall be signed at the foot or end thereof by the testator, or by some other person in his (or her)
presence and by his (or her) direction,
(2) and such signature shall be made or acknowledged by the testator in the presence of two or more
witnesses present at the same time,
(3) and such witnesses shall attest and subscribe the will in the presence of the testator, but no form
of attestation shall be necessary. 3
Most provinces also recognize holograph wills and military wills.
Traditionally, the law required strict compliance with the formal requirements, and if the requirements
were not met, the will was invalid, whether it reflected the testamentary intentions of the testator or not.
To quote from the Alberta Law Reform Institute:
To be valid, a will must generally conform to the formalities required by the Wills
Act. The formalities which govern how a will is prepared, signed and witnessed
assist in authenticating valid testamentary dispositions:
The formalities prescribed for making a will provide some sort
of safeguard not only against forgery and undue influence but
also against hasty or ill considered dispositions. The
formalities emphasize the importance of the act of making a
Feeney, para. 1.102
Feeney para. 4.63
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will and serve as a check against imprudent action. In
general, formalities can be justified by the need to provide
reliable evidence of a person’s testamentary intentions, which
may have been expressed many years before his death. 4
While the rules requiring compliance with the legislated formalities were intended to protect testators,
the rules often resulted in the Courts refusing to probate documents which did not comply, and a failure
to carry out the expressed wishes of the testator. As has been noted:
.... Over time it has been suggested by analysts that the “formalities” have
become ends in themselves and, consequently, the courts, by insisting on strict
compliance with such formalities, have defeated the underlying purpose of the
process of will-making: formalism has thwarted the intentions of numerous will-
makers. Commentators have identified several purposes of the formal
requirements, namely: the evidentiary function, the organization function, the
cautionary function and the protective function. 5
The purpose of the formal requirements has been described as follows by the Manitoba Court of Appeal:
......... the main purposes or functions of the formality requirements of the Wills
Act as (1) the evidentiary and cautionary functions in which the requirements
of writing, signature and attesting witnesses impress the participants with the
solemnity and legal significance; and provide the court with reliable evidence
of testamentary intent and of the terms of the will; (2)the “channelling” function
in which the formal requirements result in a degree of uniformity in the
organization, language and content of most wills; and (3) the “protective”
function in which the formal requirements may protect the testator from
imposition or fraud.6
Traditionally the courts also applied very strict rules as to when extrinsic evidence was admissible to
establish testamentary intent or to interpret what the testator had intended in the will. That historical
approach was described (and rejected) in Decore:
There are policy reasons for restricting the general admission of extrinsic
evidence which may be probative of the testator’s intent or meaning. Some of
those reasons are:
Alberta Law Reform Institute, The Creation of Wills, Report for Discussion No. 20, 20074
Feeney, para 4.15
Langseth as quoted in George v. Daily 6
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1. There is a danger that a flood of spurious claims backed by
hearsay will clog the courts and bring chaos to the orderly
administration of estates;
2. There is a danger that the written document will be
supplanted by an oral or a verbal direction. 7
A review of the old cases would also include lengthy discussions about the principles of construction
of wills and the rules of interpretation, which contained much discussion about when the court could
add or delete words, and how to interpret inconsistent provisions. All of the recognized texts on wills
include entire chapters on the topic on construction of wills. The cases were often difficult to reconcile,
as different schools of thought evolved; for example the traditional or literal approach was rejected by
Lord Denning in his famous decision in Re Rowland [1962] All E. R. 837, in favour of what he referred
to as the more modern or intentional approach.
The New Legislative Approach - Substantial Compliance
Our new legislation is based in part on the 2010 Alberta Law Reform Institute Reports entitled Wills and
the Legal Effects of Changed Circumstances, which reviewed the development of legislation in a number
of other jurisdictions, and the move to legislation which recognized the authority of the court to cure
defects and to rectify errors. The Report recommended that the courts be given a ‘dispensing power’
which would allow the court to grant relief from the consequences of failing to comply with the
formalities. The Report also recommended that rectification powers in Alberta be significantly8
expanded to allow the court to correct errors arising from:
- an accidental slip omission or misdescription,
- a misunderstanding of the testator’s instructions,
- or a failure to carry out the testator’s instructions.9
Decore v. Decore, 2009 ABQB 440, at para. 8 7
ALRI Report, page 138
ALRI Report no. 98, page 1249
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While the push for the modern approach may have been growing over much of the 20 century, itth
received a major boost from Professor J.H. Langbein of Harvard who wrote what has been described as
a seminal paper entitled Substantial Compliance with the Wills Act which was published in the 1974
Harvard Law Review. In that paper, he wrote:
The rule of literal compliance with the Wills Act is a snare for the ignorant and
the ill-advised, a needless hangover from a time when the law of proof was in
its infancy. In the three centuries since the first Wills Act we have developed
the means to adjudicate whether formal defects are harmless to the statutory
purpose. We are reminded “that legal technicality is a disease, not of the old
age, but of the infancy of societies.” The rule of literal compliance has outlived
whatever utility it may have had. 10
That paper was referred to at some length by the Manitoba Law Reform Commission in its report on
substantial compliance in 1980, following which Manitoba passed the first legislation in Canada
adopting the substantial compliance approach.
It is, however, important to note that Professor Langbein’s paper also noted that “substantial
compliance doctrine is a rule neither of maximum nor of minimum formalities, and it is surely not a rule
of no formalities.” 11
To date, substantial compliance legislation has been adopted in Manitoba, Saskatchewan, Alberta,
Quebec, New Brunswick, Nova Scotia, Prince Edward Island, and most recently British Columbia. In
addition, the Indian Act and Regulations passed under it allow the Minister to dispense with the
formalities of the province in which a will has been signed by a person with status under the Indian Act.
The relevant sections of the various Acts are attached at Tab A. Similar legislation has also been
adopted in parts of Australia.
It is important to note that there are very considerable differences among the legislative provisions
which have been adopted. Manitoba’s legislation gives the courts a much broader authority to dispense
George v. Daily, (1997) 15 E.T.R. (2 ) 1 at para 1nd10
George v. Daily, supra, at para 1511
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with formalities than does the Alberta legislation, and the wording in other jurisdictions all contain
variations on the theme. The various legislative structures will be considered later in this paper,
however it is important to note at the outset that if counsel intend to refer to case law from other
provinces on any particular file, it is important to be aware that the legislative provisions differ, and that
there may therefore be issues as to whether cases from other provinces are applicable to a particular
Alberta fact situation.
There may also be significant issues if our clients have assets in more than one jurisdiction, and the
validation or rectification provisions differ significantly or if domicile is in issue.
A Sample of the Manitoba Cases
One of the most frequently quoted cases in this area is a decision of the Manitoba Court of Appeal from
1996 in George v. Daily . There the Court was asked to consider the issue of whether a letter, written12
by the testator’s accountant might be probated as the testator’s will. The testator, John Daily, met with
his accountant of many years (Dale George) and discussed with him changes that he wanted to have
made to his will. Mr. Daily advised the accountant that he did not want any of his money to go to his
children on his death, as he felt that they did not care for him and were only waiting for him to die so
that they could get his money. The accountant reviewed a copy of the existing will with the Mr. Daily, and
on Mr. Daily’s instructions and in his presence, made notes on the will and crossed out certain portions.
The accountant then wrote to a lawyer (Brock Lee QC) setting out specific instructions as to what John
Daily wanted to have in the new will.
Mr. Daily met with Mr. Lee to review the plans for the will, and told him that he wished to execute the
will at that time. Mr. Lee asked that Mr. Daily obtain a medical certificate confirming mental
competency. Two months later Mr. Daily died without having taken any steps to obtain the medical
certificate or communicate further with Mr. Lee. The question in the case was whether or not the letter
from the accountant could be admitted to probate as Mr. Daily’s will as it set out his testamentary
(1997) 15 E.T.R. (2d) 112
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intent, with the exception of a change to the executor. The Court of Queen’s Bench allowed the
application, but was reversed by the Court of Appeal.
Section 23 of the Manitoba act provides:
23 Where, upon application, if the court is satisfied that a document or any writing
on a document embodies
(a) the testamentary intentions of a deceased; or
(b) the intention of a deceased to revoke, alter or revive a will of the
deceased or the testamentary intentions of the deceased embodied
in a document other than a will;
the court may, notwithstanding that the document or writing was not executed
in compliance with any or all of the formal requirements imposed by this Act,
order that the document or writing, as the case may be, be fully effective as
though it had been executed in compliance with all the formal requirements
imposed by this Act as the will of the deceased or as the revocation, alteration
or revival of the will of the deceased or of the testamentary intention embodied
in that other document, as the case may be.
Philp J.A. stated that the standard of proof to be met on an application under section 23 of the Manitoba
Act is the ordinary civil standard of proof on a balance of probabilities, and noted that in the present
case, there had been no compliance whatsoever with the normal formal requirements. The Court quoted
from In Re Lobato Estate: Shields v. Caratozzolo (1991), 6 W.A.R. 1 (S.C) where Nicholson J. noted:
I keep in mind that it is also the case that the greater the departure from the
requirements of formal validity..... the harder it may be for the court to reach the
required state of satisfaction: .....13
The decision includes a very helpful review of the papers of Prof. Langbeing and the Manitoba Law
Reform Commission paper on the intent of the substantial compliance approach, and provided the
following comments on the relationship of s. 23 to the common law:
The term “testamentary intention” means much more than a person’s
expression of how he would like his/her property to be disposed of after death.
The essential quality of the term is that there must be a deliberate or fixed and
final expression of intention as to the disposal of his/her property on death;
George v. Daily para 19 and see para. 20 re: standard of proof13
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Bennett; Molinary v. Winfrey (1960) [1961] S.C.R. 91......
..... Whether it is the deceased’s own instrument or the notes or writing made
by a third-party, the crucial question to be answered is whether the document
expresses the animus testandi of the deceased – a deliberate or fixed and final
expression of intention as to the disposal of his/her property on death.14
Mr. Justice Helper, who concurred in the result, addressed the issue of the evidence which the Court
will seek, and the onus of on the applicant:
What this case highlights is the quality of the evidence that ought to be
presented in support of a s. 23 application. The paucity of the evidence relating
to the contents of the September 6, 1995 letter to the deceased’s
testamentary intentions is the primary factor for the success of this appeal. The
deceased did not see the document when it was created, he did not instruct the
writer on its creation, the evidence does not establish clearly that he saw the
document or had the document read to him. The only evidence connecting him
to the document is the affidavit of Mr. Lee stating that the deceased confirmed
the instructions contained in the document.
.....
In a case such as this present, where the document presented to the court has
little or no direct connection to the deceased, where the deceased has not
written or signed or initialed the document, and the evidence does not establish
with certainty that he even saw the document, an applicant should normally
present oral evidence to support an application under s. 23 of the Wills Act.
Oral evidence may not be necessary in all cases involving s. 23 applications.
But clearly, the farther removed the subject document appears to be from a
document which in some way conforms with the formal requirements of the
Wills Act, the more difficult the task of the applicant in meeting the onus under
s. 23.
..... The onus will only be satisfied by the presentation of substantial, complete
and clear evidence relating to the deceased’s testamentary intentions to the
document in question.15
George v. Daily, para 65 and 6614
George v. Daily, paras. 97 - 9915
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The New Alberta Sections
As noted above, The Wills and Succession Act (the WSA) came into force in 2012. It applies to wills
made on or after the day on which the Act came into force (February 1, 2012), and s. 8(2) states:
8(2) Despite subsection (1), sections 26 and 37 to 40 apply to a will or other
writing, a marking or an obliteration regardless of when the will, writing, marking
or obliteration was made, if the testator died after the coming into force of this
section. (emphasis added)
The sections which set out the new provisions regarding validation and rectification are contained in
sections 37 to 40, therefore those new sections apply in any estate where the individual dies after
February 1 , 2012, regardless of when the will was made. st
Section 26 sets out the duties of the court and the evidence which can be considered in interpreting
a will:
26 A will must be interpreted in a manner that gives effect to the intent of the
testator, and in determining the testator’s intent the court may admit the
following evidence:
a) evidence as to the meaning, in either an ordinary or a
specialized sense of the words or phrases used in the will,
b) evidence as to the meaning of the provisions of the will in the
context of the testator’s circumstances at the time of the
making of the will, and
c) evidence of the testator’s intent with regard to the matters referred to
in the will.
The WSA defines “will” as including all of the following:
1(1)(k) will includes
(I) a codicil,
(ii) a writing that
(A) alters or revokes a will,
(B) appoints a personal representative, or
(C) on the death of the testator, confers or exercises a power of appointment,
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and
(iii) any other writing that is a testamentary disposition.
To ensure consistency of terms used in this paper with the terminology used in the Act, the term ‘will’
in this paper will include all of the documents which are referred to in section 1 of the WSA.
The sections which set out the new authority regarding validation and rectification are as follows:
Court may validate non-compliant will
37 The Court may, on application, order that a writing is valid as a will or a
revocation of a will, despite that the writing was not made in accordance with
section 15, 16 or 17, if the Court is satisfied on clear and convincing evidence
that the writing sets out the testamentary intentions of the testator and was
intended by the testator to be his or her will or a revocation of his or her will.
Court may validate non-compliant alteration
38 The Court may, on application, order that a writing, marking or obliteration
is valid as an alteration of a will, despite that the writing, marking or
obliteration was not made in accordance with section 22(1)(b)(I) or (ii), if the
Court is satisfied on clear and convincing evidence that it reflects the
testamentary intentions of the testator and was intended by the testator to be
an alteration of his or her will.
Rectification
39(1) The Court may, on application, order that a will be rectified by adding or
deleting characters, words or provisions specified by the Court if the Court is
satisfied, on clear and convincing evidence, that the will does not reflect the
testator’s intentions because of
(a) an accidental slip, omission on misdescription, or
(b) a misunderstanding of, or a failure to give effect to, the
testator’s instructions by a person who prepared the will.
(2) Subsection (1) applies to the omission of the testator’s signature only if the
Court is satisfied on clear and convincing evidence that the testator
(a) intended to sign the document but omitted to do so by pure
mistake or inadvertence, and
(b) intended to give effect to the writing in the document as the
testator’s will.
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(3) An application under this section may not be made more than 6 months
after the date the grant of probate or administration is issued, unless the Court
orders an extension of that period.
(4) The Court may order an extension of the period on any terms the Court
considers just.
Validation of gift to witness
40(1) The Court may, on application, order that a disposition or appointment referred
to in section 21(1) is not void if the Court is satisfied that
(a) the testator intended to make the disposition to the individual
or to appoint the individual despite knowing that the
individual was an individual described in section 21(1), and
(b) neither the individual nor the individual’s spouse or adult
interdependent partner exercised any improper or undue
influence over the testator.
(2) An application under this section may not be made more than 6 months
after the date the grant of probate or administration is issued unless the Court
orders an extension of that period.
(3) The Court may order an extension of the period on any terms the Court
considers just.
WSA Section 37 – Court may Validate Non-Compliant Wills
For a will to be a valid will in Alberta, it must normally be executed in compliance with the requirements
of section 15, 16 and 17. Section 15 provides for a formal will which must be signed by the writer in
the presence of two witnesses both of whom are present at the same time, and each of the witnesses
must sign the will in the presence of the testator and each other, at the same time. Section 16 provides
for holograph wills, and s. 17 provides for military wills. The new rectification authority granted under
s. 37 applies to all three kinds of wills.
One of the first cases to consider the effect of s. 37 in Alberta was the decision of Madam Justice
Strekaf in Woods v. Cannon. In that case, a woman named Pat Woods had been diagnosed with16
Woods v. Cannon, 2014 ABQB 61416
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terminal breast cancer, but had been told that she had approximately a year to a year and a half to live.
She retained counsel for the purposes of preparing her will. The lawyer met with her at which time the
lawyer completed her firm’s Will Questionnaire in Pat’s presence and took full instructions from her as
to who was to be appointed as the executor, and for the distribution of all property.
Unfortunately, Pat died unexpectedly the morning after the interview. During the meeting, Pat had
provided notes made on a yellow note pad to the lawyer. The notes were not signed in any way but it
was accepted that they had been made by Pat.
An application was made pursuant to s. 37 to admit Pat’s notes and/or the Will Questionnaire into
probate as Pat’s will. The application was not successful. Justice Strekaf reviewed the requirements
of s. 14 which requires that a will must be in writing, must contain a signature of the testator and must
be made in accordance with ss. 15, 16 or 17.
She reviewed and distinguished the decision of the Manitoba Court of Appeal in George v. Daily on the
basis of the differences between the Manitoba legislation and ours, noting that under the Manitoba
legislation, if the Court is satisfied that a document or any writing on a document embodies the
testamentary intentions of the deceased the Court may order that the document or writing as the case
may be is fully effective as though it had been executed in compliance with all the formal requirements.
It is important to note in Manitoba that there is no requirement for a signature - rather the test is
whether the writing “embodies the testamentary intentions”. Justice Strekaf, in looking at the Alberta
legislation stated:
The Court’s ability to “validate” a will pursuant to s. 37 does not enable the
Court to override the requirement in section 14(b) that a will be signed by the
deceased. While the courts in certain other jurisdictions, such as Manitoba,
have this authority, the legislature in Alberta has chosen not to permit it.
Further, s. 37 of the Act permits the Court to validate as a will only a writing that
“was intended by the testator to be his or her will or a revocation of his or her
will”. It cannot be said that Pat intended that either Pat’s Notes or the Will
Questionnaire would be her will, as she was contemplating that her will would
be the document to be prepared by her lawyer that she was planning to execute
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on December 5, 2012.17
Justice Strekaf went on to review s. 39 which contains a limited authority for the Court to rectify a will
which the deceased has failed to execute in certain specified circumstances including where there has
been an accidental slip or omission or misdescription, or a misunderstanding of, or a failure to give
effect to, the testator’s instructions by a person who prepared the will. Justice Strekaf ruled that s. 39
was not applicable as it could not be said that Pat had not signed the will due to mistake or
inadvertence, as the will itself was not even in existence at the time of her death. With respect to the
differences between the Manitoba legislation and the Alberta legislation, Justice Strekaf said:
By including s. 39 in the Act, the Alberta legislature elected to adopt a middle
position between the jurisdictions like Manitoba, which permit a writing to be
recognized as a will notwithstanding the lack of the deceased’s signature, and
jurisdictions like Prince Edward Island that require a signature in all cases. 18
She went on to state that she was satisfied that the Will Questionnaire accurately reflected Pat’s
testamentary intentions and that she would have signed a will in accordance with those intentions, but
that the Alberta Act did not authorize the Court to grant an order validating the Will Questionnaire as
Pat’s will.
Quaere whether we should consider having clients sign wills instructions or Questionnaires in
circumstances where there is a terminal illness - or is that more likely to create more problems than it
would solve?
A draft Will was accepted by Mr. Justice Sisson in an unreported decision in McKay v. Holm and
Hasledine. That decision, which appears to have been in morning chambers, involved a situation19
where the deceased Victor Holm, and his adult interdependent partner Wanda McKay, retained a lawyer
to prepare wills for them. The wills were prepared and sent out and an appointment was made for the
Woods v. Cannon, para. 18 and 1917
Woods v. Cannon, para. 2218
Unreported Decision, Action No. ES10 20209, Sept. 25, 201319
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signing of the wills. Mr. Holm and Ms. McKay had to cancel that appointment so a subsequent
appointment was made and unfortunately prior to the second appointment Mr. Holm died suddenly and
unexpectedly. The draft will together with an extensive Affidavit from the lawyer who had been retained
to prepare the wills was provided to the court together with an application to validate the will either
pursuant to section 37 or 39 of the WSA. The Court stated that:
In this case the writing is not valid as the word is used in sections 14 and 37,
nor does it comply with section 15 which requires the signature of the testator
and two witnesses, but section 37 does use the word “valid” and does apply to
correct section 14 problems if there is clear and convincing evidence that the
draft will not only set out Mr. Holm’s testamentary intention, but was also
intended by Mr. Holm to be his will. 20
The court noted that there was convincing evidence that the draft will was intended by Mr. Holm to be
his will, and accordingly probate was granted.
An application under s. 37 was successful in Re Curtis where a document that had been handwritten21
by the wife, and which was intended to be the will of the husband, was signed by the husband, without
witnesses. The document was therefore not a formal will, but did not meet the requirements of a valid
holograph will.
The basic facts were that the parties had agreed that they should have wills; the wife wrote out both
wills (which were mirror wills) on one piece of paper. She signed her will, and the husband signed his
section, and the document was then stored with their other important papers. It was the husband’s
third marriage, and he had children from the two previous marriages. The wills left everything to each
other and to the children of the third marriage.
Justice Read considered both the process and the onus of proof to be met by the Applicant. With
respect to process - she referred to Rule 70 (technically 70.1) of the Surrogate Rules, which provides:
McKay v. Holm and Hasledine, supra, page 320
Re Curtis 2014 ABQB 74521
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70.1(1) An application for the purposes of section 37, 38, 39(1), 40(1), any provision
of Part 5 or section 109 of the Wills and Succession Act must be commenced
by filing Form C1 accompanied with an affidavit in Form C2.
Justice Read noted that procedure for the hearing is set out in Rule 64, which provides very broad
authority for the court to receive affidavit or oral evidence, direct a trial, grant a variety of forms of relief
which are listed, and to “make any order that the court considers necessary in the circumstances”.
The application in Re Curtis was originally brought in morning Chambers, and was accepted, although
is was clear that Justice Read had reserved, and had reviewed the law extensively before reaching her
decision. She also noted that it would be a rare case that could be dealt with in morning Chambers. 22
Justice Read considered the meaning of the phrase “testamentary intention”as used in s. 37. She
quoted from George v. Daily to say:
The Manitoba Court held that “the term ‘testamentary intention’ means much
more than a person’s expression of how he would like his/her property to be
disposed of after death. The essential quality of the terms is that there must
be a deliberate or fixed and final expression of the intention as to the disposal
of his/her property on death”.23
With respect to the burden of proof to be met, and the meaning of the phrase “clear and convincing
evidence” in s. 37, she stated:
The term “clear and convincing evidence” does not imply a higher standard of
proof than the normal civil standard. The Supreme Court of Canada confirmed
that there is only one civil standard of proof, which is proof on a balance of
probabilities: C. (R.) v. McDougall, 2008 53 (S.C.C.), at 49
In finding that the burden of proof had been met, Justice Read noted that there was no concern about
the possibility of undue influence, and reviewed the affidavit evidence of the widow and the deceased’s
accountant, which satisfied her. She noted that:
Re Curtis, at para. 1122
Re Curtis, at para. 2323
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.... most important, however, is the fact that the Deceased’s three older children
were served with notice of this application and did not appear to contest it.
The Applicant deposed that all are adults and none was dependent upon the
Deceased. The Applicant deposed further, that in April 2014 she attended a
memorial service for the Deceased’s brother and there met an spoke with
Shirley, the first wife of the Deceased along with their oldest son Christopher.
Her evidence was that both told her they knew that Shirley and the children of
that marriage were not beneficiaries under the Deceased’s will and neither
expressed any dissatisfaction. While this is hearsay, Christopher was given
notice of this application, including a copy of the affidavit in support and did not
appear to dispute this evidence. 24
Section 37 includes an authority for the Court to order that a writing is valid as a “revocation of a will”
despite the writing not complying with the formalities. Section 23 sets out the ways in which a will can
be revoked and is as follows:
23(1) A will or part of a will may be revoked only by
a) the testator making another will,
b) the testator making, in accordance with the provisions of this
Part governing the making of a will, a writing that declares an
intention to revoke the earlier will,
c) the testator burning, tearing or otherwise destroying the will
with the intention of revoking it , or
d) the testator having another individual burn, tear or otherwise
destroy the will in the testator’s presence at the direction of
the testator given with the intention of revoking the will.
(2) For greater certainty,
a) on or after the coming into force of this section, no will or part
of a will is revoked by the marriage of the testator,
b) on or after the coming into force of this section, no will or part
of a will is revoked by the testator entering into an adult
interdependent relationship, and
c) no will or part of a will is revoked by a change in
circumstances of the testator except to the extent that
section 25(1) applies.
(3) The revocation of a will does not revive any earlier will.
As at the date of writing this paper, there have not been any reported cased dealing with validation of
Re Curtis, at para. 3224
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a revocation of a will in Alberta. The Manitoba Court of Queen’s Bench considered the issue of what
formalities were necessary to revoke a will in a very interesting decision in Re Roelofs Estate , which25
is discussed below in a review of cases from other jurisdictions.
It should also be noted that Rule 24 of the Surrogate Rules allows the Court to admit to probate a
photocopy of a will where the original has been lost if the will is formally proved. That is effectively an
authority for the Court to dispense with the usual requirement for production of the original will for
probate purposes. A discussion of cases dealing with that issue is beyond the scope of this paper, but
it will be interesting to see whether the principles of interpretation which have been legislated in s. 26
of the WSA will affect applications with respect to applications to probate copies of lost wills.
WSA Section 38 - Court may Validate Non-Compliant Alternation
Section 22 of the WSA sets out the formal requirements for an alteration to a will to be valid, and states:
22(1) Any writing, marking or obliteration made on a will
(a) is presumed to be made after the will is made; and
(b) is valid as an alteration of the will only if
(i) in the case of a will made under section 15, the alteration is
made in accordance with that section,
(ii) in the case of a will made under section 16, the alteration is
made in accordance with that section, or
(iii) the Court makes an order under section 38 validating the
alteration.
(2) If a writing, marking or obliteration renders part of the will illegible, and
is not made in accordance with subsection (1)(b)(I) or (ii) or validated by an
order referred to in subsection 1(b)(iii), the Court may allow the original words
of the will to be restored or determined by any means the Court considers
appropriate.
(3) A will may be altered by another will made by the testator.
2004 MBQB 28025
-17-
Section 38 has been set out in full above.
Under the traditional wills laws, if an alteration was made to a will that did not comply with the required
formalities, the alteration failed. Section 38 of the WSA allows the Court to validate the alteration with
wording that is very similar to that found in s. 37 dealing with non-compliant wills.
Section 38 was considered by the Court in Smith v. Smith where the basic facts were that a testator26
signed a valid formal will in 2003, and then separated from his common law spouse (Ms. Charpentier).
In 2008, he made hand written notes on the will by which he removed Ms. Charpentier as executor and
sole beneficiary, and substituted his daughter as executor and named his 4 children together with the
Ms. Charpentier’s granddaughter as the beneficiaries. The changes were not signed or witnessed.
Mr. Justice Gates heard that application to validate the alterations and noted that only section 38 could
save the alterations. He referred to the other provinces that have passed similar legislation, and said:
Although slight variations exist between the language of the respective statutes
in regards to the limitations of the dispensation powers, the test of
testamentary intention is the same throughout. Specifically, under the four
pieces of legislation, the dispensation power can be invoked where the Court
is satisfied that the document or writing in question embodies: (a) the
testamentary intentions of the deceased, or (b) the intention of the deceased
to revoke, alter or revive a will of the deceased or the testamentary intentions
of the deceased embodied in a document other than a will. This test of
testamentary intention, although phrased differently, can also be found in
section 38 of Alberta’s WSA where it states: “...it reflects the testamentary
intentions of the testator and was intended by the testator to be an alteration
of his or her will”.
With respect to the burden of proof, Justice Gates reviewed cases from Saskatchewan and Manitoba
and noted:
In Sawatzky, the Court summarized the guiding principles to be applied in
interpreting section 23 of the Manitoba Wills Act .... as follows:
.... in order for a document to be declared a valid will
notwithstanding lack of compliance with the formal
2012 ABQB 67726
-18-
requirements of the Act, the applicant must prove, on a
balance of probabilities, that the document embodies the
deceased’s testamentary intention, that is, that it is “a
deliberate or fixed and final expression of intention as to the
disposal of his/her property on death..... “.
The Court went on to quote the statement in George that “... the greater the
departure from the requirement of formal validity ...., the harder it may be for
the court to reach the required state of satisfaction” that the document
contains the deceased’s final testamentary intentions...... 27
Justice Gates reviewed the affidavit evidence, and noted that Ms. Charpentier was represented by
counsel, had been served with notice of the application, and had not contested it. He stated that he
was satisfied with the evidence, and validated the alterations.
Section 39 - Rectification
This section was considered in 2012 by Rooke A.C.J.Q.B. in a decision in Fuchs v. Fuchs . In that case,28
the deceased Harry Fuchs signed a will in June 1999 at a time when he was living with Barbara Fuchs,
whom he later married. At the time of the will Mr. Fuchs had not yet been divorced from his first wife.
In the will, he referred to Barbara Fuchs as his friend, and the will did not contain any indication that
it was made in contemplation of marriage. Once Mr. Fuchs had obtained his divorce from his first wife
he and Barbara Fuchs married and as we are all aware, under the old Wills Act, the marriage would have
had the effect of invalidating the will, unless the will could be rectified under the new provisions.
Associate Chief Justice Rooke reviewed the facts and noted that the deceased had died on February
8, 2012, roughly one week after the WSA came into effect. He noted that under the old Act, the
marriage of the testator had revoked a will unless it was specifically declared to be in contemplation of
marriage but noted that s.8 of the new WSA provides that the WSA Act applies if the testator dies after
the Act came into force. He noted that under section 26 of the new Act, a will must be interpreted in
Smith v. Smith, supra, at para. 11 and 1227
2013 ABQB 7828
-19-
a manner which gives effect to the intent of the testator, and that in determining the testator’s intent
the court may admit evidence as to the meaning of words or phrases used, as well as evidence of the
testator’s intent with regards to matters referred to in the will.
The Court noted at the time that the will was signed, the deceased was not capable of marriage because
his previous divorce had not gone through, and that he could not have called Barbara his spouse or his
intended spouse because he already had one (being his first wife). He said that Mr. Fuchs might have
referred to Barbara as his “common law spouse”, but that seemed contrary to the law by which he was
still married to his previous spouse Elizabeth, and that therefore the word friend which was used was
an accurate and logical description. Associate Chief Justice Rooke ruled that he could rectify the will
by adding the phrase “This will is made in contemplation of my marriage to my friend Barbara Lippka
at such time as I am legally able to do so.” to the will. The court stated:
Put another way, the strict interpretation of s. 17 of the Old Act would mean
that the will would be invalid and that she would only inherit one-half of the
estate. However, applying the provisions of s.26 of the New Act (in context of
the new policy applicable to wills in contemplation of marriage) to allow
evidence to interpret the circumstances surrounding the will, and on the basis
of my findings with respect to the Deceased’s intentions and clearly implied
instructions, the rectification under s.39 would allow the intentions of the
testator to be brought forward.29
Accordingly, he invoked s. 39 to rectify the will to provide that it was made in contemplation of marriage.
The issue of extrinsic evidence was considered in Ryrie v. Ryrie . In that case the testator, Bruce Ryrie30
died in 2012 at the age of 93. He had six children who survived him and two children who predeceased
him, one of whom left two children (ie. the testator’s grandchildren). The will included a paragraph
which was unclear as to whether or not the grandchildren were to receive a share. The paragraph in
question was as follows:
Fuchs v. Fuchs at para. 2729
2013 ABQB 370. For a further discussion of extrinsic evidence, see the decision of Wakeling J.A. in 30
Hanson v. Mercredi (sub nom. Lubberts Estate, Re) 2014 ABCA 216
-20-
4. I give all of my property, including any property over which I have a
power of appointment to my Trustee upon the following trusts:
(a) To divide and distribute the residue of my estate among my children,
Brian Martin Ryrie, Lynette Fern Ryrie, Wallace Bruce Ryrie, Lionel Gary
Ryrie, Diane B. Howard and Barry David Ryrie, in equal shares,
provided that if any child of mine has predeceased me leaving issue
alive at my death, then I direct that such issue shall receive in equal
shares, per stirpes, that share in my estate to which such deceased
child of mine would have been entitled, had he or she survived me.31
The list of individuals in paragraph 4(a) did not include a deceased son Leonard Ryrie who had left the
two surviving grandchildren. The will was prepared by a solicitor who gave viva voce evidence at the
application with respect to whether or not the grandchildren were to receive a share of the estate.
The application was brought under sections 26 and 39 for interpretation and rectification. The
respondents’ argued that the beneficiaries were those individuals listed in the first part of paragraph
4(a) and that any evidence of the testator’s intent was unnecessary. The applicant’s, who were the
grandchildren, took the position that clause 4(a) was ambiguous, and that evidence was required to
prove the testator’s intention. Further they said that the best evidence was the evidence of the solicitor
who drafted the will (that the testator had intended to include the grandchildren).
The court found that the wording of the clause was ambiguous and that therefore it was not necessary
to rule on whether or not s. 26 had altered the law. Justice Sisson noted that what has been changed
by the WSA is that the legislation now provides specific guidance on how the court is to determine the
intent of the testator. 32
In his decision, Justice Sisson reviewed the evidence of both sides and noted the facts which led him
to accept the evidence of the applicants over that of the respondents. He found that the applicants had
met their burden of proof and that section 39(1) could be invoked to rectify the wording of the will as
the evidence was clear that there had been an accidental slip, omission or misdescription by the lawyer
Ryrie v. Ryrie, at para. 931
Ryrie v. Ryrie, at para. 7332
-21-
in the preparation of the will together with the failure to give effect to the testator’s instructions by a
person who prepared the will. He rectified clause 4(a) by removing the names of the individuals who
had originally been referred to, so that the corrected paragraph 4(a) read as follows:
4. I give all my property, including any property over which I have a power of
appointment to my Trustee upon the following trusts:
(a) To divide and distribute the residue of my estate among my
children in equal shares, provided that if any child of mine has
predeceased me leaving issue alive at my death, then I direct that
such issue shall receive in equal shares, per stirpes, that share in my
estate to which such deceased child of mine would have been entitled,
had he or she survived me.33
Examples of Cases from Other Jurisdictions:
a. Evidence of Fixed and Final Intent
As was noted above in the decision of Mr. Justice Gates in Smith, the court must be satisfied that the
document which is before the court represents the fixed and final intent of the testator as to what is to
be done with the testator’s property after his or her death. That issue was discussed in one of the
leading Manitoba cases of Sawatzky v. Sawatzky Estate.34
In that case, Dr. Sawatzky had a valid holograph will however having been diagnosed with cancer he
retained a lawyer and asked that the terms of the holographic will be reflected in a formal will to be
prepared by the lawyer. The lawyer prepared a draft form of will which was provided to Dr. Sawatzky
which was largely the same as the holograph will, however there was a change to the executor and the
executor’s powers. Several weeks after the draft will had been provided to Dr. Sawatzky, the lawyer (Mr.
Clay) attempted to contact Dr. Sawatzky, but was advised that he had been hospitalized.
Apparently Dr. Sawatzky then got on the telephone with Mr. Clay and indicated that he wanted to make
Ryrie v. Ryrie, at para. 12433
Sawatzky v. Sawatzky Estate, 2009 MBQB 22234
-22-
substantial changes to the draft will. Mr. Clay attended at the hospital that night and met with Dr.
Sawatzky for about 45 minutes. Mr. Clay made several hand-written changes on his copy of the typed
will and Dr. Sawatzky made some hand-written changes on his copy of the will. During that meeting 14
changes were discussed with respect to the bequests and the residue, which Mr. Clay noted in his hand-
written notes. Mr. Clay prepared the revised document the next day, and attended at the hospital,
however as a result of heavy sedation, Dr. Sawatzky was unable to sign the will, and he died before
recovering consciousness.
An application was brought to validate the final version of the will that Mr. Clay had brought to the
hospital. The court reviewed the facts in detail and considered the dispensation power under the
Manitoba legislation, which is extremely broad. As noted above, that legislation allows the court to
validate a document that embodies the testamentary intentions of the deceased whether it has been
signed or not. Simonsen J. considered cases involving non-compliance rather than imperfect
compliance before ruling that he was not satisfied, on a balance of probabilities, that the subject
document reflected Dr. Sawatzky’s deliberate or fixed and final testamentary intentions.
The court said that there was no evidence that Dr. Sawatzky actually reviewed the subject document.
He noted that Dr. Sawatzky was clearly a meticulous individual who, in the court’s view, would likely
have attached considerable significance to the act of signing. The court noted that the fact that he had
not signed the draft during the evening interview indicated to Dr. Sawatzky that he was free to make
more changes. The court noted that this was not a situation where the testator knew that death was
imminent and that his instructions would therefore likely be final. In refusing the application Simonsen
J. stated:
In all, I find the comments of Philip J.A. in George at para. 83 to be apt in this
case:
Testators do change their minds! And sometimes their
instructions are misinterpreted or misunderstood. It is a
matter of notorious fact that even formal wills prepared by
lawyers after full and careful instructions require, on occasion,
amendments or alterations at the time of execution, or even
require redrafting after the testator has reviewed the
document. The cautionary and evidentiary functions of the
-23-
formalities of the Act operate to ensure that in those kinds of
situations the will that is eventually executed by the testator
represents his/her testamentary intentions.
Another case involving a draft will which was not admitted to probate is that of In Re Nielsen Estate
2012 SKQB 15, where a draft will was prepared by a solicitor and sent to the client, however the client
did not book a follow-up appointment to have the will signed and after her death, the draft was found
among her papers. Her nephew deposed that she had told him that the package of documents
contained her will.
Danyliuk J. noted that there was something of a split in the authorities which considered
Saskatchewan’s s. 37 in that some cases says that section may be employed to cure any defect in a
testamentary document as long as it is clear the document expresses a testamentary intention of the
deceased, while another line of authorities stated that the section could not be used to rectify a total
failure to execute the document.. Danyliuk J. said that:
It is apparent that although the powers under s. 37 of the Act are broad, the
Court must ensure that the documents and language used disclose a cogent,
coherent testamentary intent. The Court cannot speculate on the testamentary
intention or manufacturer a will which it considers appropriate.
In this case, all we really know was that the deceased gave initial instructions for a will
and that a draft was sent to her a few days later. There is no “substantial, complete and
clear evidence” that the draft will’s contents embodied her final testamentary wishes
and directions. 35
A draft will was also considered by the New South Wales Supreme Court in Lumb Estate: McMillan v.
Lumb. That case was summarized by in an article by Timothy Matthews as follows: 36
In Lumb Estate; McMillan v. Lumb, the deceased consulted his solicitor to
discuss a new Will and gave instructions to him. There were some unresolved
real estate matters which the testator wished to settle before finalizing his will.
The solicitor prepared a draft and faxed it to Mr. Lumb. Two years later, Mr.
Lumb was due to go into hospital for an operation. His daughter, Mrs.
McMillan, testified that her father said to her “I need to finalize my will before
Re Nielsen Estate, at para 28 and 2935
[2005] N.S.W.S.C. 37136
-24-
I go to a hospital tomorrow.” He had the faxed copy of the will draft and made
changes on it. At his daughter’s suggestion, he made the desired changes in
blue ink pen and initialed them. He signed the draft will at the end. He spoke
by telephone with Mrs. McMillan’s husband and said that he completed his will
and had added him as a co-executor. He then wrote a note to his lawyer, stating
“I would like My Estate To Be Distributed as I have Described in My Will of 16th
December 2002, Which Reflects Mabel’s and my wishes.” and signed the letter
. His daughter made a copy of the document for him and took the original “will”
with her to the United States. The Supreme Court admitted the document to
probate.
b. The Onus on the Applicant
The issue of the onus on the applicant was discussed at some length in George v. Daily, and is
discussed above. That decision has been cited in a number of the cases in Saskatchewan and Alberta.
The Saskatchewan legislation, which is included in Tab A, provides that a document or writing may be
fully effective as though it had been properly executed as the will if the court is satisfied that the
document or writing embodies the testamentary intentions of the deceased. There is no requirement
in Saskatchewan for a signature at all but that fact can be considered by the Court. In Re Kube Estate37
Currie J. dealt with a situation where the deceased, Goldven Kube, was survived by 5 nieces and
nephews several of whom apparently took an active interest in his estate plan prior to his death. The
eventual litigants took Mr. Kube to different lawyers in his later years for the purpose of signing or
revoking various testamentary documents.
After Mr. Kube’s death, one set of the potential beneficiaries produced a ‘cut and paste’ type document
which had no signature, and asked that it be recognized as his will. Currie J. noted that the question
of the validity of the document was to be determined on a balance of probabilities, but also said:
While s. 23 is a remedial piece of legislation, empowering the court to give
effect to a testamentary intention contained in a document not otherwise
conforming to the Act, the section imposes a significant onus on an applicant.
I describe the onus as significant because in disposing of an application under
2014 SKQB 29137
-25-
s. 23, the court must be ever mindful that the question for determination is
testamentary intention and the person who can best speak to that intention,
the deceased, is not present to give evidence. The onus will only be satisfied by
the presentation of substantial, complete and clear evidence relating the
deceased’s testamentary intentions to the document in question ...... 38
In that same decision, the Court quoted with approval from the decision of Justice Vancise in Re Bunn
Estate where he said that the Saskatchewan legislation did not require some minimum level of
compliance. The Court said that the degree of compliance is not determinative of when the
Saskatchewan section becomes operative, but is another factor for the Court to consider in determining
if a document represents the true testamentary intentions of the deceased.39
In rejecting the purported Will in Kube, Justice Currie said:
At the root of the provisions of the Wills Act is the goal of identifying and
implementing a person’s testamentary intentions. The rules of formal execution
are aimed at this goal. Section 37, in permitting a judge to recognize a
testamentary document that does not comply with the formal rules, also is
aimed at this goal.
........
The evidence does not prove what happened. The evidence does not prove
what Goldven Kube did or intended with respect to the tendered document. The
evidence does not establish that the tendered documents likely is an
expression of Goldven Kube’s testamentary intentions, either as a will or as a
revival. On the evidence any conclusion as to how the tendered document came
to exist, and as to what Goldven Kube may have intended in relation to it, does
not surpass the level of speculation.
There is a lack of “substantial, complete and clear evidence relating to the
deceased’s testamentary intentions to the document”. There is insufficient
evidence to establish, on a balance of probabilities, that Goldven Kube
intended the document to express his testamentary intentions, or that he
intended by the document to revive an earlier will. 40
Kube at para. 1438
Kube, at para. 1939
Kube at para. 40 - 4340
-26-
The onus on the applicant was not found to have been met in Belser v. Fleury where a nephew of the41
deceased produced a stationer’s form with some, but not all of the blanks filled in, and which was not
been dated, signed or witnessed. The document purported to leave all of the deceased estate to the
nephew, one Grant Besler. There were conflicting affidavits from family members as to whether the
handwriting was that of the deceased. The Court noted:
The applicant says the document was given to him by the deceased the day
after it was completed. This means the document was not found among the
personal effects of the deceased after his death and places a greater
responsibility on the applicant to demonstrate the document to be Mr. Wood’s
own.
.....
In these circumstances, considerably more evidence was necessary to satisfy
the court the handwriting the document was that of Clarence Wood. At the very
least, some expert evidence was required. However even this might be
insufficient in this case given other concerns raised in the affidavits, such as
the possibility of undue influence on Mr. Wood, and the absence of evidence
showing that in or about the time of the purported will he was of sound mind
and understanding. ....
The onus of proof to establish, by the civil standard, that the document was
made by Clifford Wood lies on the applicant. That onus has not been
discharged. As I have already indicated, the evidence is simply insufficient to
establish proof on a balance of probabilities that the deceased himself, with full
mental capacity and understanding, made the document.42
c. Dispositive Intent
Several of the reported cases on substantial compliance have turned on whether the document which
is brought forward contains any dispositive intent (i.e. whether it disposes of the property of the author
of the document on death). In Re Buckmeyer Estate an application was made to admit 3 documents43
to probate, being an existing will, an email sent by the deceased John Buckmeyer and a typed document
[1000]M.J. No. 205, 27 E.T.R. (2d) 29041
Belser v. Fleury at paras. 5, 12 and 1442
2008 SKQB 26043
-27-
entitled “Re - Amendment to last will” which was signed but not witnessed. This was another
Saskatchewan decision, so the lack of signature on the email would not necessarily have been fatal,
however the email was not admitted to probate, as it was not dispositive.
The email said that John was very ill and wanted to give the executor more information and to express
John’s wishes before he died. He listed his credit accounts, and gave directions with respect payment
of debts and with respect to cremation and the ashes.
The Court noted that “in order for a document to be testamentary, it must in essence dispose of an
asset or power” and later that “there is nothing in the email which disposes of poperty to a beneficiary
and therefore it does not contain any dispositive intention.44
Ottenbreit J. stated that:
The direction to pay the bills out of the insurance and the directions with
respect to funeral arrangements are not testamentary but administrative only. 45
Another case which involved the question of dispositive intent is The Estate of Young 2015 BCSC 182.
As is apparent from the citation - that is a British Columbia decision, and it is important to note that the
BC substantial compliance section is significantly different from Alberta’s. The BC curative provision is
found in s. 58 of the BC Wills, Estates and Succession Act, which provides:
58(1) In this section, “record” includes data that
a) is recorded or stored electronically,
b) can be read by a person, and
c) is capable of reproduction in a visible form.
(2) On application, the court may make an order under subsection (3) if the court
determines that a record, document or writing or marking on a will or document
represents
Buckmeyer at para. 22 and 2844
Re Buckmeyer at para. 3145
-28-
a) the testamentary intentions of the deceased person,
b) the intention of the deceased person to revoke, alter or revive a will or
testamentary disposition of the deceased person, or
c) the intention of the deceased person to revoke, alter or revise a
testamentary disposition contained in a document other than a will.
(3) Even though the making, revocation, alteration or revival of a will does not
comply with this Act, the court may, as the circumstances require, order that a
record or document or writing or marking on a will or document be fully effective
as though it had been made
a) as the will or part of the will of the deceased person,
b) as a revocation, alteration or revival of the will of the deceased person,
or
c) as the testamentary intention of the deceased person.
In that case, Mrs. Young knew she was terminally ill. She had a valid will, so that was not in issue, but
after her death 2 documents were found on the dining room table. The first was signed and dated June
17, 2013 was 2 pages, and contained names of people who were described as beneficiaries, and under
their names were items of personal property. The second document was unsigned, was dated October
15, 2013 and was entitled “Beneficiary Contacts Information”. That document included some names,
but also directions to the executor as to the manner in which the household goods were to be
distributed.
Dickson J. reviewed the new legislation and several of the leading decisions from Manitoba and
Saskatchewan. He noted that the BC WESA does not specify a minimal level of execution or other
formal requirement for a testamentary document to be found fully effective. 46
He confirmed that the burden of proof is a balance of probabilities, and added:
The burden of proof that a non-compliant document embodies the deceased’s
testamentary intentions is a balance of probabilities. A wide range of factors
may be relevant to establishing their existence in a particular case. Although
context specific, these factors may include the presence of the deceased’s
signature, the deceased’s handwriting, witness signatures, revocation of
previous wills, funeral arrangements, specific bequests and the title of the
document.... 47
Estate of Young, at para. 2146
Estate of Young, at para. 3647
-29-
Dickson J. admitted the June 17 document to probate but rejected the October 15 as he was notth th
satisfied that it recorded a deliberate expression of the deceased’s wishes as to the disposal of her
property on her death. It was more in the style of a letter and was not signed. 48
d. The Requirement for Due Execution with respect to Revocation
The issue of whether a will which did not comply with the formalities could be effective to revoke a prior
will was considered in Re Roelofs Estate. There, the deceased signed a valid will in 1985 leaving49
everything to his then wife. They subsequently separated, and in 1995 he made a will which revoked
all prior wills, and left his estate to his new spouse. The1995 will was signed, but was only witnessed
by one witness. Later, he wrote the word “Void” on the cover of the 1995 will, and on the copies of it.
There was no signature or witness with respect to the word “Void”, but his neighbour was present and
gave evidence that he saw the testator write the word void.
The Manitoba Court of Queen’s Bench exercised its discretion under s. 23 to dispense with the formal
requirements for the second will, and therefore found it to be valid and effective as at the day that it was
signed. The 1995 will therefore revoked the 1985 will. With respect to the effect of writing the word
“Void” on the cover of the 1995 Will, the Court said:
The writing of the word “void” on both the original and the two copies of the will
clearly shows an intention that the will is to be cancelled and of no further
effect. A precedent for this is the case of Canada Trust Co. v. Foster, [1991] O.J.
No. 3475 (On. Gen. Div.), where the testatrix wrote on her will “Cancelled/ Lily
Downey”. The court held that the will had been revoked and the court observed:
The shorter Oxford English Dictionary, vol. 1 at p.274 contains
definitions of the word “cancelled” some of which are as
follows: “to render void; to obliterate; to put an end to; to
annul by so marking”. Applying these definitions to this case
would mean that the deceased intended to void her August 3,
1983 will when she used the word “cancel” or “cancelled” ......
Young, para 41 and 4348
2004 MBQB 28049
-30-
.......
It is true that the deceased did not sign the purported revocation but it was
unquestionably in his handwriting and nothing would have been added by a
signature. 50
Note that the Manitoba legislation does not require a signature while the Alberta legislation is much
more strict in that regard.
The Indian Act
The Indian Act, which is of course federal legislation, includes provisions which address the validity of
wills signed by individuals who are status Indians, and which allow the minister to accept as valid a
document which would otherwise fail for lack of compliance with the wills legislation of the province in
which was signed. Section 45 of the Act, and s. 15 of the Regulations are as follows:
45.(1) Nothing in this Act shall be construed to prevent or prohibit an
Indian from devising or bequeathing his property by will.
(2) The minister may accept as a will any written instrument
signed by an Indian in which he indicates his wishes or
intention with respect to the disposition of his property upon
his death.
(3) No will executed by an Indian is of any legal force or effect as
a disposition of property until the minister has approved the
will or a court has granted probate thereof pursuant to this
Act.
15. Any written instrument signed by an Indian may be accepted
as a will by the minister whether or not it conforms with the
requirements of the laws of general application in force in any
province at the time of the death of the Indian.
That section was considered in Bernard Estate v. Bernard, a decision of the New Brunswick Court of
Queen’s Bench. The deceased Charles Bernard signed a will which left property to his son Stewart,51
Re Roelofs Estate at paras. 14 - 1650
1985, 23 E.T.R. 15, 29 D.L.R. (4 ) 133th51
-31-
but unfortunately the will was witnessed by Stewart’s wife Margaret. The gift would normally have
failed, however the Court held that the federal legislation prevailed over the provincial legislation.
It is clear that the provisions of s. 45 of the Indian Act and particularly those of
s. 15 of the Indian Estates Regulations conflict with the requirements as to
formalities in the Wills Act. Section 15 specifically provides that any written
instrument signed by an Indian may be accepted by the minister as a will
whether or not it conforms with the requirements of the laws of general
application. This, in my view, has the effect of overriding any provincial
legislation which stipulates the need for formalities in the making of a will. 52
The Court held that based on the Indian Act and Regulations, the attestation was unnecessary, and
therefore the gift did not fail.
Conclusion
It is still ‘early days’ in our understanding of this legislation. When Nova Scotia brought in their
equivalent legislation, one commentator wrote:
I suggest that Nova Scotia is embarking on a quest for justice in hard cases, at
the cost of abandoning certainty. For five hundred years the requirements for
execution of a valid will have been precise and rigid, if not universally well-
known. I hope that a principled approach will emerge in time, so that the degree
of credible evidence required to convince the court that a piece of paper is the
will of the deceased is well-defined. It would be a cruel result if more and more
lay people resorted to will-making on their own, gleefully assuming the
technicalities do not matter and that the court will fix their mistakes. At a
minimum, there will be more estate litigation. The barrister in me looks forward
to that likelihood, but the solicitor in me shudders at the prospect. 53
Bernard at para. 1152
Matthews, “Succession Law Reform in Nova Scotia: Updating the Wills Act” (2007) 26 Estates, Trusts and 53
Pensions Journal 205 at page 216
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It is evident that the author had his reservations about the move to dispense with the traditional
formalities, however whether we agree or disagree with the philosophy of the new legislation, it is now
in effect, and almost all provinces have some variation of the dispensing authority in their wills acts.
With the ever increasing use of wills kits and the increasing number of testators who have learned
everything they ever need to know about drafting their own wills via the internet, we know that we will
face an increasing number of documents that do not comply with the traditional formalities. The cases
reviewed above demonstrate that we can also expect to have many more situations in which clients
have retained lawyers to draft their wills, but through illness or misunderstanding, the documents are
not signed prior to the testator’s death. And we must expect that the technological advances which are
very much a part of our daily lives will also impact on the development of the case law in this area.
My own personal view is that the new provisions are a very positive development in the law, and that
we can and should be making every effort to give effect to an individual’s testamentary intention, where
the court can be satisfied as to what that intention was. The devil is, as they say, in the detail, and there
will be no end of challenging details in particular cases, but is it not better that we should seek to give
effect to the testator’s wishes rather than simply applying arbitrary and antiquated rules no matter what
the consequences.
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