45 St. Clair Ave. West, Suite 600
Toronto, Ontario, M4V 1K9
Tel: (416) 925-7400

In Grocery Bags and Under Pads of Paper: The Validity of a Found Holograph Codicil

If the Testatrix considered a Sobey’s bag appropriate for storing her Will, then it stands to reason that the location of the Codicil on a ledge in the apartment does not detract from the analysis as to whether the Codicil was intended to be a testamentary document.” ~ Justice Marshall

In King Estate v Hiscock, 2015 NLTD(G) 173, the Newfoundland Supreme Court Trial Division considered whether a handwritten codicil left folded under a pad of paper on a ledge in the apartment of the deceased was a valid testamentary document. The Court examined two issues: 1) was the Codicil testamentary in nature or only “deliberative or initiatory” and 2) was the Codicil validly signed?

Background

The deceased, Cynthia J. King, drafted a valid holograph Will in 2002. She named an executrix under the Will and advised her of its existence. The executrix searched for the Will after the testatrix had died and found it in a card sized envelope with other unrelated papers in a plastic Sobey’s shopping bag, within a garbage bag. Later, when the executrix was cleaning out the deceased’s apartment she was making a note on a pad of paper located on a ledge where the deceased kept her telephone, when she discovered a second document, folded in half, under the pad of paper. It was the alleged Codicil.

The Codicil was entirely hand written by the deceased and was dated May 8, 2012 (just over a month before her death). The executrix submitted it for probate along with the holograph Will. The defendant in this matter, a sibling of the deceased, was not aware of the Codicil until after it had been probated. The defendant brought a motion to revoke the order of probate for the codicil, arguing that it was not valid under the Wills Act RSNL 1990, c. W-10.

The Codicil was a simple two page document that reflected a different distribution than the Will. One example: the Will provided that a property was to be sold and divided equally between two siblings while the Codicil indicated that the property was to be sold and the proceeds left to only one sibling.

The Codicil was also unsigned but the deceased had written her name several times in the body of the Codicil (i.e. “For Cynthia J. King’s Estate”, “I; Cynthia J. King. . .says for my estate” and “Cynthia J. King says ‘Yes’ to what I have written here”. Furthermore, the testatrix had written at the bottom of the Codicil, “Witness: Jean Asernault [sic] – Cynthia King’s Best Friend”. There was, however, no signature from Jean Arsenault.

The Analysis

Justice Marshall first noted that even if the Codicil was properly executed its probate should be revoked if the Codicil “was only deliberative or initiatory”.[1] In other words, if it does not show the testatrix’s final intention it should not be admitted to probate. If it merely expresses an intention to instruct a solicitor to prepare a will or her intention to draft a subsequent holograph will, it is not testamentary in nature.

The defendant argued that the Codicil was merely a plan or notes about the contents of a subsequent will which was never made. It was not witnessed or signed by the deceased. If it was supposed to be such an important document it would have been in a more secure spot than under a pad of paper on a ledge in her apartment.

But Justice Marshall noted that the deceased had kept her Will in a Sobey’s bag. The Sobey’s bag was also not a secure place: “The facts are that the Codicil existed; it was not discarded; and it was in a location where it could be, and was, found.”[2]

Considering also that a witness’s signature was not required on the holograph codicil, the fact that the witness’s signature was not obtained does not lead to the conclusion that the Codicil was “deliberative or initiatory” particularly where the contents of the entire Codicil are examined to determine if there is a disposing effect. Also, the deceased had used phrases such as “This is my wish & my Request” and “I; Cynthia J. King …says for my estate to do the following” which were indicative of the deceased’s intention as to the disposal of her property upon her death.

Justice Marshall concluded that the Codicil was indeed a “deliberate or fixed and final expression” of the deceased’s intention and concluded that “the Codicil is not invalid due to Ms. King not specifically referring to an executrix, the residue, the previous will, or the word “bequest”. The Codicil clearly described Ms. King’s intent as to the disposal of her property upon death and revoked only the inconsistent portions of the Will.[3]

But was it validly signed?

It was clear that the deceased had not signed the document in a stand-alone fashion, either at the beginning or end of the document. However, the deceased had signed her name multiple times within the body. Justice Marshall summarized:

[i]t would be unjust to defeat the clear intentions of the Testatrix simply on the basis that none of her signatures, as contained in the Codicil, were ascribed on a stand-alone basis. Specifically, Ms. King’s signature is contained in the first and last lines of the Codicil; and either of these lines was written last by the Testatrix. In my view, whichever of these lines was written last, such line constitutes an authentication of the Codicil. These lines should be considered in the context of the confirmatory middle sentence. As stated, the signature in the middle sentence could also be deemed as the act of execution necessary to “breathe the life of intention” (Oliver Estate, (1993), 106 Nfld. & P.E.I.R. 32, (Nfld. T.D.), aff’d (1994), 124 Nfld. & P.E.I.R. 294 (Nfld. C.A.) at paragraph 42) into the document.

Justice Marshall determined that the Codicil was validly executed.

Concluding Comments

While valid holograph wills are indeed proper testamentary documents, they are not without their complications, as this case evidences. It is surprising the number of people who rely on holograph wills – perhaps they wish to avoid lawyer’s fees or feel that their estate is simple enough to deal with themselves. However, the issues with holograph wills are numerous, including ambiguities and errors, failure to dispose of the entire estate, failure to name an executor, etc. or they can easily go missing or not be found at all if the testator fails to tell anyone that the will exists or where it can be found. Spending a little money up front to get a properly drafted Will will likely save a lot of wasted court fees in the long run.

[1] 2015 NLTD(G) 173 at para. 41.

[2] Ibid at para. 49.

[3] Ibid at para. 71.

Author

Previous Post:
Next Post:
Click here or on top Blog logo to return to Blog front page.

Search Blog by Keyword(s)

Site Search

Site Map