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Modernizing the Law of Wills in Manitoba

Proposed Reform of the Wills Act in Manitoba

The Manitoba Law Reform Commission published its Final Report #139, Reform of The Wills Act, The Law of Property Act, and The Beneficiary Designation Act, Revisited in March 2020.[1] The rather cumbersome title reflects the fact that the Commission first considered reform of The Wills Act[2] in its 2003 Report 108, Wills and Succession Legislation.[3] Its recommendations were not enacted, which is why the Commission revisited the matter in its latest Report. However, the Commission did not retract the 2003 Report and it remains in force, save as changed by the new Report.

In my opinion, the Report contains an excellent review of succession law reforms in other jurisdictions and makes important and desirable recommendations for reforms in the law of wills and related areas in Manitoba. It is therefore worthwhile to consider the Commission’s recommendations as they may suggest the need for reform in other jurisdictions

In passing, I continue to mourn the untimely demise of Ontario’s Law Reform Commission, the untoward victim of a previous cost-cutting government. During its 35-year existence it served this province well and its excellent reports resulted in sound law reform. Manitoba and other provinces that retain their law reform commissions or equivalent organizations continue to be well-served by thorough, well-researched reports on the reform of basic black letter laws in those provinces. Many of the reports have been implemented for the benefit of the citizens of those provinces. Meanwhile, in Ontario we have to make do with succession legislation that is more than 40 years old and trustee legislation that dates back to the 19th century. We badly need reform of these and other statutes to serve our 21st century society effectively.

The following is a summary of the Manitoba recommendations.[4]

  1. Mental Capacity. The Commission decided not to replace the common law presumption of testamentary mental capacity with a statutory presumption and shifting burden of proof. In my opinion this is a wise position. The common law rule is ancient, but it has served us well and, as the jurisprudence indicates, it is readily adapted to new fact situations.
  2. Statutory Wills (or Judicial Wills). To date New Brunswick is the only Canadian jurisdiction that has permitted statutory wills. Its Infirm Persons Act[5] permits the court to make, amend, or revoke a will for a mentally incompetent person, or to authorize a substitute decision maker to do so, subject to the court’s approval. England has a similar provision in its Mental Capacity Act 2005.[6] Legislation authorizing the making of a will for a person who lacks testamentary capacity exists also in the Australian states and in New Zealand. An earlier version of the English legislation was even used effectively to frustrate the perfidious scheme of a predator who took advantage of an elderly woman and married her, thereby revoking her existing will. Quick action by the authorities resulted in a statutory will in the same terms as the original will.[7] However, the Alberta Law Reform Institute did not recommend adoption of a judicial will in its Creation of Wills Report.[8] The Manitoba Commission investigated the effect of the legislation in several jurisdictions and concluded that the Wills Act should be amended to enable the court to make, alter, or revoke a will for a person lacking testamentary capacity. I applaud this recommendation, as I believe there are situations in which this power can be used effectively for the benefit of a person who lacks capacity and the person’s family. However, I should have preferred that the Commission also empowered the court to authorize a substitute decision maker to make, amend, or revoke a will, subject to court approval.
  3. Beneficiary Designations. As a complement to the proposed statutory will power, the Report also recommends amendments to several statutes that would empower substitute decision makers, with the approval of the court, to make, change, or revoke a beneficiary designation in a plan to which the Beneficiary Designation Act[9] applies. This is a very important recommendation, because there is no automatic roll-over when a plan is renewed, replaced or converted, except under the Insurance Act.[10] When one of those events happens, the old plan ceases to exist and any beneficiary designation in it falls by the wayside. That happens, for example, when an RRSP has to be converted to a RRIF when a plan participant reaches the age of 72, or when a plan is transferred to another institution. If the plan participant wants to continue the same designation, the participant must make a new designation, but if the participant lacks capacity to do so, it is uncertain whether a substitute decision maker can made the new designation. This recommendation closes that gap.[11] A similar power exists in British Columbia[12] and the Alberta Law Reform Institute has also recommended such legislation.[13]
  4. Privileged Wills. A privileged will is a will that can be made by a member of the armed forces while on active service, or by a sailor while at sea or in the course of a voyage. It must be signed at its end by the testator but does not need to be witnessed. The Commission received a submission from the Office of the Judge Advocate General advocating the retention of the privileged will provision. However, the Commission believes that there is no longer a need for the provision in view of modern succession legislation that contains a dispensing or validating power, so it recommends its repeal. This seems a reasonable recommendation.
  5. Minors. The Commission recommends that the Wills Act should be amended to permit a person who is under the age of 18 years (or 16 years if the testamentary age is changed to 16 years) and is or was married or in a common law relationship and has testamentary capacity to make, alter, or revoke a will. A person who does not fall within those criteria can make an application for a declaration of testamentary capacity.
  6. Electronic Wills. The making and validity of electronic wills has been considered by a number of law reform commissions and such wills have been recognized as valid under statutory validation powers in some jurisdictions. The Commission believes that it is necessary to make provision for electronic wills. Accordingly, it recommends recognition of a will that is in electronic form, namely, a will that is recorded or stored on any medium in or by a computer system, can be read by an individual, and is capable of reproduction in a visible form. I believe that this is a very timely and sensible recommendation.
  7. Video Tape and Cinematographic Wills. The Commission recommends that the Wills Act should be amended to provide that the film of making a will is admissible in a contested will action as evidence of testamentary intention and capacity, knowledge and approval, and due form and execution. This is an eminently desirable proposal. Some lawyers make use of videography to record their interview with the client and the process of receiving instructions and execution of the will in order to provide evidence that will support the validity of the will. This can be especially important when the testator is elderly and of diminishing capacity and in situations in which there is the possibility that the will may be attacked by disappointed beneficiaries.
  8. Gifts to Translators. Wills statutes invalidate gifts to witnesses and amanuenses or their spouses. However, most modern wills statutes contain provisions that allow the court to validate such gifts if satisfied that the witness, amanuensis, or the spouse has not exercised undue influence on the testator. Some statutes also include translators in these provisions. This seems a reasonable addition and the Commission recommends that it be added to the Wills Act.
  9. Notice and Validation Limitation. The Commission notes that the statutory provisions mentioned in the previous recommendation do not require the personal representative to give notice to a witness or amanuensis, or their spouse or common law spouse and most statutes do not prescribe a limitation period during which an application for judicial validation must be made.[14] The Commission recommends an addition to the Wills Act requiring the personal representative to give notice and the availability of the power of validation and its limitation period. It also recommends a limitation period of six months from the grant of probate or administration, or such extended period as approved by the court. I query the wisdom of these recommendations. They presuppose that the personal representative is aware of the legislation that avoids gifts and the corresponding validation provision. I venture to think that in most cases they are not aware of them. But perhaps a limitation period, assuming the court is given power to extend it, is appropriate.
  10. Personal Representative Remuneration. Sometimes a will may make provision for the compensation to be paid to the personal representative. As a complement to Recommendation 8, the Commission recommends rightly that that Recommendation should not have the effect of negating the personal representative’s right to such compensation provided for in the will. Hence, the legislation should provide that it does not have that effect when the personal representative or spouse acts as witness, amanuensis, or translator of the will.
  11. Revocation by Marriage and Common-law Relationship. Most wills statutes in Canadian provinces[15] contain a provision that a will is revoked by the marriage of the testator, unless the will contains a declaration that it is made in contemplation of the marriage. The feedback received by the Commission recommends the repeal of this provision because people are unaware of it. Further, predators take advantage of the provision by marrying older, vulnerable persons so that they can take the victims’ property on their intestacy. The Commission was persuaded that Manitoba should follow the example of Alberta and British Columbia, which abolished this provision. This is a very important first step for legislators to take to frustrate the plans of predators! Is anybody in authority in Ontario listening? The Commission makes a further recommendation to include a reference to the commencement of a common law marriage if the provision is retained.
  12. Revocation by Divorce. Most modern wills statutes contain a provision to the effect that a gift to a spouse is revoked if the parties divorce (or their common law relationship ends) unless the will provides otherwise. The Commission recommends that the Wills Act should require the registrar of the Court of Queen’s Bench to accompany a decree absolute of divorce with a notice of that provision, and for the Director of Vital Statistics upon the registration of the termination of a common law relationship to do the same. In a companion recommendation, the Commission recommends that the Wills Act should state expressly that the provision does not prevent a former spouse or common law partner from relying on any agreement to which the testator is a party.
  13. Undue Influence. The Commission sought input on the question whether the Wills Act should contain a statutory doctrine of undue influence, like that adopted by British Columbia. The British Columbia legislation[16] introduces the equitable presumption of undue influence, which applies to inter vivos gifts, into the realm of probate. That presumption is raised when the donee of an inter vivos gift stands in a confidential or fiduciary relationship to the donor and imposes a burden on the donee to rebut the presumption. There is no such presumption in the law of probate, where someone who attacks the will for undue influence always has the onus to prove it. Thus the British Columbia legislation imposes the onus to prove that undue influence did not exist on the propounder of will in situations of potential dependence or domination of the testator The majority of the responses received recommended that this area should be left uncodified and the Commission agreed. I believe that the British Columbia provision was misguided, because it blurs the distinction between the jurisdiction of the court exercising its probate jurisdiction and its interpretive jurisdiction. That distinction is centuries old and is well-worth preserving.[17]
  14. Presumptions and Elections. The law of wills recognizes a number of presumptions, usually referred to by the names, election, satisfaction, the rule against double portions, and related presumptions. These derive from English social conventions and are not relevant in the Canadian context. For this reason Alberta and British Columbia abolished them.[18] The Commission rightly recommended their abolition.
  15. Mortgaged Land. Most wills statutes contain a provision which states that a devisee takes property subject to any mortgage on it. The British Columbia legislation extends this provision also to tangible personal property.[19] The Commission recommends adoption of the British Columbia provision. This is a sensible recommendation.
  16. Heirs. Section 29 of the Manitoba Wills Act defines “heir”, but there appears to be a potential conflict with s. 17.4 of the Law of Property Act,[20] which speaks of “heirs”. So the Commission recommended adding the phrase “or heirs” after the word “heir” in s. 29.
  17. Consolidation. The Commission considered that it would be advantageous to consolidate some statutes, as other provinces have done. So it recommends that the Wills Act, Intestate Succession Act,[21] and Dependants Relief Act be consolidated into one Act entitled the Wills, Intestate Succession, and Dependants Relief Act.[22] It is a good recommendation, but I find the title cumbersome. Why not simply Wills and Succession Act?
  18. Abatement. The common law of abatement applies when a will fails to designate which assets must be used to pay debts. Manitoba had replaced the common law of abatement with statutory rules in the Law of Property Act.[23] However, in Recommendations 49-53 of Report 108[24] the Commission recommended that those provisions be replaced with new ones and that they be inserted into the Court of Queen’s Bench Surrogate Practice Act,[25] which seems to be a more suitable location.
  19. Surrogate Practice. Because the title of the Act just mentioned is cumbersome, the Commission recommended that it should be renamed the Administration of Estates Act. That is sensible recommendation and brings the title of the Act in line with legislation in other provinces.

In conclusion, the Report contains a number of sound recommendations that other provinces ought to consider when the reform their own wills legislation.

[1]      http://www.manitobalawreform.ca/pubs/pdf/additional/the_wills_act_revisited_final_report.pdf (the “Report”).

[2]      CCSM c. W150.

[3]      Wills and Succession Legislation, Report 108, 2003. This Report is available on the Commission’s website. It’s list of recommendations is contained in Appendix A of the 2020 Report.

[4]      To avoid confusion, the numbers of the following proposals are not always identical to the numbers of the Commission’s recommendations, because I have often grouped complementary recommendations under the main recommendation.

[5]      R.S.N.B. 1973, c. I-8, ss. 3(1) and (4) and 11.1, 15, and 15.1 (enacted by S.N.B. 1994, c. 40, ss. 1, 3).

[6]      2005 (U.K.), c. 9, ss. 16, 18.

[7]      Re Davey, [1981] 1 W.L.R. 164 (Ct. of Protection). For a somewhat similar case, see Re APB, ex parte Sheehy, [2017] QSC 201.

[8]      Report 96 (2009).

[9]      The Beneficiary Designation Act (Retirement, Savings and Other Plans), S.M. 1992, cl 31, CCSM c. B30.

[10]    CCSM c. I40, ss. 154(2)(e), 167(5) and (6), 209(2)(e), 224(5) and (6).

[11]    See further Manitoba Law Reform Commission, Creating Efficiencies in the Law: The Beneficiary Designation Act (Retirement, Savings and Other Plans, Final Report, September 2019, pp. 5-7.

[12]    See Power of Attorney Act, R.S.B.C. 1996, c. 370, s. 20(5)(b), and the Wills, Estates and Succession Act, S.B.C, 2009, c. 13, s. 90(1).

[13]    Albert Law Reform Institute, Beneficiary Designations by Substitute Decision Makers, Final Report No. 104 (2014), para. 26.

[14]    Only the Saskatchewan Wills Act, S.S. 1996, c. W-14.1, s. 13(6) imposes a limitation period of six months from the grant of probate or letters of administration with will annexed.

[15]    Except in Alberta, British Columbia, and Quebec.

[16]    Wills, Estates and Succession Act, S.B.C. 2009, c. 13, s. 52

[17]    See Albert H. Oosterhoff, “The Discrete Functions of Courts of Probate and Construction” (2017), 46 Adv. Q. 316. And see Oosterhoff on Wills, 8th ed. by Albert H. Oosterhoff, C. David Freedman, Mitchell McInnes, and Adam Parachin (Toronto: Thomson Reuters/Carswell, 2016), §6.5, 9th ed. forthcoming 2021.

[18]    Wills and Succession Act, S.A. 2010, c. W-12.2, ss. 109, 110, 111; Wills, Estates and Succession Act, S.B.C. 2009, c. 13, ss. 51, 53.

[19]    Wills, Estates and Succession Act, S.B.C. 2009, c. 13, s. 47.

[20]    CCSM, c. I90,

[21]    S.M. 1989-90, c. 43.

[22]    S.M. 1989-90, c. 42.

[23]    CCSM c. L90, s. 17.3(4) and (5).

[24]    Footnote 3, supra.

[25]    CCSM c. C290.

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