Some cases are horrific examples of how testators mess with their wills after they have executed them. They make changes to the wills without executing the changes, or failing to have them attested. And not being satisfied with that, they do it again and again. Eissmann v. Kuntz[1] is such a case. Although the case is unremarkable in that it is one of many with similar fact, it is noteworthy in that it did not discuss the possible application of the doctrine of republication of wills.
The testator, Siegfried Kuntz, was born in Germany and was married there. He and his wife had one child, the respondent, Petra Kuntz. Siegfried and his wife were divorced in 1967, after which he emigrated to Canada. He lost touch with Petra for a number of years, but later sought to reconnect with her. Siegfried never remarried and had no other issue. After the fall of the Berlin wall, Siegfried reconnected with his family who lived in East Germany and formed close ties with them. They included his sister, Ruth Eissman. He had no family in Canada.
After Siegfried’s death a number of testamentary documents were found in his apartment. They referred to his German family and also to his daughter. Ruth and her agent, Matthias Duensing, brought an application for an order naming Matthias administrator of the estate with a will. Then they brought a motion for directions on the question which testamentary document governed.
Siegfried made his first will, a notarial will, in 1967 while he still lived in Germany. In it he left his estate equally between his wife and Petra.
In 1982 Siegfried wrote a holograph will, which he signed, in which he named Petra as his beneficiary.
In 2000 he wrote another holograph document in which he stated that he wished to amend the 1967 will. He also signed this document. In it he listed the beneficiaries of his estate and the amounts he wanted them to have. They included Ruth, three nephews and their wives, and Ruth’s grandchildren. However, by holograph alterations to the 2000 document that were clearly added later (as the court found), he increased these amounts very significantly. Both the original amounts and the revised amounts remained visible. Siegfried did not sign or initial the alterations. The 2000 document left the residue to Petra.
In 2003 he wrote to the law firm with which he had made the 1967 will and told them that it was invalid. The law firm wrote back to tell him that therefore the will was no longer effective.
In 2009 Siegfried wrote another holograph testamentary document, which he signed. It said that Petra was not to receive anything from his estate. This document also contained later unsigned alterations (as the court found) that identified the document as an amendment to his will of 2000. This document was found in an envelope together with the 2000 will.
The parties agreed that the 1967 will was no longer in force. In accordance with s. 15(b) of the Succession Law Reform Act,[2] it was revoked by the 1982 document.
The court found that the 1982 will was a valid will, but it was revoked by the 2000 will in accordance with s. 15(b) of the SLRA. The 2000 will was a valid holograph will under s. 6 of the SLRA and not merely a codicil to the 1967 will. However, the holograph alterations to the 2000 will were not effective, because they did not comply with s. 18(1) of the SLRA. It requires that, to be effective, alterations (apart from those that obliterate the original text, which can be effective) must be executed in accordance with the provisions of Part I of the SLRA, i.e., in the case of holograph documents, in the margin or near the alterations, or at the end of or near a memorandum written on the document about the alterations.
The court then went on to find that the 2009 document was a testamentary instrument that operated as a valid holograph codicil to the 2000 will, thereby revoking the paragraph in that will that left the residue to Petra. In consequence, Siegfried died partially intestate, since the 2000 will no longer disposed of the residue. Since Petra was the only issue of Siegfried, she became entitled to the undisposed of portion of the estate under s. 47(1) of the SLRA.
The reasons are certainly defensible so far as they go. But clearly they do not achieve what Siegfried intended. Perhaps in jurisdictions that have a dispensing power the court might have been able to give effect to his intention,[3] but Ontario has no such power.
The problem was that Petra not only became entitled to take the entire residue under the partial intestacy, but the residue became much larger because Siegfried failed to sign the alterations to the 2000 will.
Could this result have been avoided? It seems that the doctrine of republication of wills was not argued before Justice Dunphy. Had it been, the alterations to the 2000 will could have been held effective in my opinion.
The doctrine of republication gives a will a new, later date. At common law this was done by re-executing the will, or by executing a codicil to the will, in both cases with the intention of confirming the contents of the will. The doctrine is important in that, if a will takes a later date because of republication, it can then be construed in accordance with any change in circumstances. Thus, if the will contains a gift “to the wife of X” and X then divorces his wife and later remarries between the date of the original will and its republication, the new spouse will be allowed to take.[4] The doctrine can also have the effect of avoiding the operation of the equitable doctrine of conversion.[5] And it will save a gift to a witness who attests the will, but does not attest the codicil that republishes the will.[6] Similarly, unattested alterations made to the will after its original execution can be validated by a republication.[7]
However, the common law doctrine of republication is based on a presumption that the testator intended to give a new date to the will. The doctrine does not, therefore, apply automatically, but depends upon the intention of the testator.[8] This is illustrated by Re Maltby.[9] A testator had given the proceeds of certain policies of insurance on his life to his estate. By a subsequent inter vivos declaration he changed the beneficiary under the policies to his wife. Later he made a codicil to his will. It was held that the codicil did not republish the will, since, if it did, the testator’s intention to benefit his wife would be defeated.[10]
The former statutes in Alberta and Ontario[11] provided that every will re-executed, republished, or revived by a codicil should be deemed to have been made at the time of re-execution, republication or revival. Their current statutes contain a similar provision, but it extends only to revival. Hence, as regards the law of republication, resort must now be had to the common law.
The British Columbia, Manitoba, New Brunswick, Northwest Territories and Nunavut statutes[12] provide that every will re-executed, republished or revived by a codicil shall be deemed to have been made at the time of re-execution, republication or revival. Thus, they extend also to re-execution and republication.
I submit that the 2009 codicil was effective to republish the 2000 will with its alterations and that the republication did not conflict with the testator’s intention, but rather confirmed it. In that case Petra would still be entitled to the undisposed of residue on the partial intestacy, but it would be significantly reduced by the increased gifts to Ruth and her family under the alterations.
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[1] 2018 ONSC 365.
[2] R.S.O. 1990, c. S.26.
[3] See, e.g., Re Scott (1995), 8 E.T.R. (2d) 33 (Man. Q.B.); Re Swanson Estate, 2002 SKQB 115, 44 E.T.R. (2d) 306; Smith v. Smith, 2012 ABQB 677, 84 E.T.R. (3d) 83.
[4] Re Hardyman; Teesdale v. McClintock, [1925] Ch. 287. And see Re Heath’s Will Trusts; Hamilton v. Lloyds Bank Ltd., [1949] Ch. 170.
[5] See, e.g., Re Pyle, [1895] 1 Ch. 724 (C.A.); Re Reeves; Reeves v. Pawson, [1928] 1 Ch. 351.
[6] Re Trotter, [1899] 1 Ch. 764.
[7] Re Hunter (1912), 1912 CarswellOnt 45; (1873), L.R. 3 P. & D. 26; Tyler v. Merchant Taylor’s Co. (1890), 15 P.D. 216; Re Hay (1904), [1904] 1 Ch. 317 (Eng. Ch. Div.); Re Heath, [1892] P. 253. Rule 74.04 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provides that an application for a certificate of appointment of estate trustee with a will must, if the will or codicil is in holograph form, be accompanied by an affidavit of condition (formerly an affidavit of “plight”) at the time of execution if the will or codicil contains unattested alterations that have not been attested. This enables a court to determine that the alterations were made at a later date.
[8] See Re Hardyman, footnote 4, supra; Re Heath’s Will Trusts, footnote 4 supra.
[9] [1960] O.W.N. 473
[10] See also Royal Trust Co. v. Shimmin, [1932] W.W.R. 447 (B.C.S.C.), affirmed [1933] 3 D.L.R. 718 (B.C.C.A.); Re Marcus (1887), 57 L.T. 39.
[11] Wills Act, R.S.A. 2000, c. W-12, s. 2(2); R.S.O. 1970, c. 499, s. 6. See also Eugene R. Meehan “Ontario Wills Reform” (1978), 3 E.T.R. 27.
[12] Wills Act, C.C.S.M., c. W150, s. 22(1); R.S.N.B. 1973, c. W-9, s. 21(1); R.S.N.W.T. 1988, c. W-5, s. 2(1); R.S.N.W.T. (Nu.) 1988, c. W-5, s. 2(1); Wills, Estates and Succession Act, S.B.C. 2009, c. 13, s. 57(3).
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Written by: Albert Oosterhoff
Posted on: July 6, 2018
Categories: Commentary
Some cases are horrific examples of how testators mess with their wills after they have executed them. They make changes to the wills without executing the changes, or failing to have them attested. And not being satisfied with that, they do it again and again. Eissmann v. Kuntz[1] is such a case. Although the case is unremarkable in that it is one of many with similar fact, it is noteworthy in that it did not discuss the possible application of the doctrine of republication of wills.
The testator, Siegfried Kuntz, was born in Germany and was married there. He and his wife had one child, the respondent, Petra Kuntz. Siegfried and his wife were divorced in 1967, after which he emigrated to Canada. He lost touch with Petra for a number of years, but later sought to reconnect with her. Siegfried never remarried and had no other issue. After the fall of the Berlin wall, Siegfried reconnected with his family who lived in East Germany and formed close ties with them. They included his sister, Ruth Eissman. He had no family in Canada.
After Siegfried’s death a number of testamentary documents were found in his apartment. They referred to his German family and also to his daughter. Ruth and her agent, Matthias Duensing, brought an application for an order naming Matthias administrator of the estate with a will. Then they brought a motion for directions on the question which testamentary document governed.
Siegfried made his first will, a notarial will, in 1967 while he still lived in Germany. In it he left his estate equally between his wife and Petra.
In 1982 Siegfried wrote a holograph will, which he signed, in which he named Petra as his beneficiary.
In 2000 he wrote another holograph document in which he stated that he wished to amend the 1967 will. He also signed this document. In it he listed the beneficiaries of his estate and the amounts he wanted them to have. They included Ruth, three nephews and their wives, and Ruth’s grandchildren. However, by holograph alterations to the 2000 document that were clearly added later (as the court found), he increased these amounts very significantly. Both the original amounts and the revised amounts remained visible. Siegfried did not sign or initial the alterations. The 2000 document left the residue to Petra.
In 2003 he wrote to the law firm with which he had made the 1967 will and told them that it was invalid. The law firm wrote back to tell him that therefore the will was no longer effective.
In 2009 Siegfried wrote another holograph testamentary document, which he signed. It said that Petra was not to receive anything from his estate. This document also contained later unsigned alterations (as the court found) that identified the document as an amendment to his will of 2000. This document was found in an envelope together with the 2000 will.
The parties agreed that the 1967 will was no longer in force. In accordance with s. 15(b) of the Succession Law Reform Act,[2] it was revoked by the 1982 document.
The court found that the 1982 will was a valid will, but it was revoked by the 2000 will in accordance with s. 15(b) of the SLRA. The 2000 will was a valid holograph will under s. 6 of the SLRA and not merely a codicil to the 1967 will. However, the holograph alterations to the 2000 will were not effective, because they did not comply with s. 18(1) of the SLRA. It requires that, to be effective, alterations (apart from those that obliterate the original text, which can be effective) must be executed in accordance with the provisions of Part I of the SLRA, i.e., in the case of holograph documents, in the margin or near the alterations, or at the end of or near a memorandum written on the document about the alterations.
The court then went on to find that the 2009 document was a testamentary instrument that operated as a valid holograph codicil to the 2000 will, thereby revoking the paragraph in that will that left the residue to Petra. In consequence, Siegfried died partially intestate, since the 2000 will no longer disposed of the residue. Since Petra was the only issue of Siegfried, she became entitled to the undisposed of portion of the estate under s. 47(1) of the SLRA.
The reasons are certainly defensible so far as they go. But clearly they do not achieve what Siegfried intended. Perhaps in jurisdictions that have a dispensing power the court might have been able to give effect to his intention,[3] but Ontario has no such power.
The problem was that Petra not only became entitled to take the entire residue under the partial intestacy, but the residue became much larger because Siegfried failed to sign the alterations to the 2000 will.
Could this result have been avoided? It seems that the doctrine of republication of wills was not argued before Justice Dunphy. Had it been, the alterations to the 2000 will could have been held effective in my opinion.
The doctrine of republication gives a will a new, later date. At common law this was done by re-executing the will, or by executing a codicil to the will, in both cases with the intention of confirming the contents of the will. The doctrine is important in that, if a will takes a later date because of republication, it can then be construed in accordance with any change in circumstances. Thus, if the will contains a gift “to the wife of X” and X then divorces his wife and later remarries between the date of the original will and its republication, the new spouse will be allowed to take.[4] The doctrine can also have the effect of avoiding the operation of the equitable doctrine of conversion.[5] And it will save a gift to a witness who attests the will, but does not attest the codicil that republishes the will.[6] Similarly, unattested alterations made to the will after its original execution can be validated by a republication.[7]
However, the common law doctrine of republication is based on a presumption that the testator intended to give a new date to the will. The doctrine does not, therefore, apply automatically, but depends upon the intention of the testator.[8] This is illustrated by Re Maltby.[9] A testator had given the proceeds of certain policies of insurance on his life to his estate. By a subsequent inter vivos declaration he changed the beneficiary under the policies to his wife. Later he made a codicil to his will. It was held that the codicil did not republish the will, since, if it did, the testator’s intention to benefit his wife would be defeated.[10]
The former statutes in Alberta and Ontario[11] provided that every will re-executed, republished, or revived by a codicil should be deemed to have been made at the time of re-execution, republication or revival. Their current statutes contain a similar provision, but it extends only to revival. Hence, as regards the law of republication, resort must now be had to the common law.
The British Columbia, Manitoba, New Brunswick, Northwest Territories and Nunavut statutes[12] provide that every will re-executed, republished or revived by a codicil shall be deemed to have been made at the time of re-execution, republication or revival. Thus, they extend also to re-execution and republication.
I submit that the 2009 codicil was effective to republish the 2000 will with its alterations and that the republication did not conflict with the testator’s intention, but rather confirmed it. In that case Petra would still be entitled to the undisposed of residue on the partial intestacy, but it would be significantly reduced by the increased gifts to Ruth and her family under the alterations.
—
[1] 2018 ONSC 365.
[2] R.S.O. 1990, c. S.26.
[3] See, e.g., Re Scott (1995), 8 E.T.R. (2d) 33 (Man. Q.B.); Re Swanson Estate, 2002 SKQB 115, 44 E.T.R. (2d) 306; Smith v. Smith, 2012 ABQB 677, 84 E.T.R. (3d) 83.
[4] Re Hardyman; Teesdale v. McClintock, [1925] Ch. 287. And see Re Heath’s Will Trusts; Hamilton v. Lloyds Bank Ltd., [1949] Ch. 170.
[5] See, e.g., Re Pyle, [1895] 1 Ch. 724 (C.A.); Re Reeves; Reeves v. Pawson, [1928] 1 Ch. 351.
[6] Re Trotter, [1899] 1 Ch. 764.
[7] Re Hunter (1912), 1912 CarswellOnt 45; (1873), L.R. 3 P. & D. 26; Tyler v. Merchant Taylor’s Co. (1890), 15 P.D. 216; Re Hay (1904), [1904] 1 Ch. 317 (Eng. Ch. Div.); Re Heath, [1892] P. 253. Rule 74.04 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provides that an application for a certificate of appointment of estate trustee with a will must, if the will or codicil is in holograph form, be accompanied by an affidavit of condition (formerly an affidavit of “plight”) at the time of execution if the will or codicil contains unattested alterations that have not been attested. This enables a court to determine that the alterations were made at a later date.
[8] See Re Hardyman, footnote 4, supra; Re Heath’s Will Trusts, footnote 4 supra.
[9] [1960] O.W.N. 473
[10] See also Royal Trust Co. v. Shimmin, [1932] W.W.R. 447 (B.C.S.C.), affirmed [1933] 3 D.L.R. 718 (B.C.C.A.); Re Marcus (1887), 57 L.T. 39.
[11] Wills Act, R.S.A. 2000, c. W-12, s. 2(2); R.S.O. 1970, c. 499, s. 6. See also Eugene R. Meehan “Ontario Wills Reform” (1978), 3 E.T.R. 27.
[12] Wills Act, C.C.S.M., c. W150, s. 22(1); R.S.N.B. 1973, c. W-9, s. 21(1); R.S.N.W.T. 1988, c. W-5, s. 2(1); R.S.N.W.T. (Nu.) 1988, c. W-5, s. 2(1); Wills, Estates and Succession Act, S.B.C. 2009, c. 13, s. 57(3).
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