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Canadian Will Validating Provisions and Their Application

I began this blog as a comment on the recent British Columbia case, Bishop Estate v Sheardown.[1] However, that case does not stand on its own and so I had to discuss some decisions that preceded it, as well as the divergent language of validating provisions in wills statutes across the country and cases applying them. In consequence, this blog is more about the validating provisions and how they are interpreted than about the Bishop case. The blog does not, however, give an exhaustive discussion of the case law.

Many Canadian jurisdictions now have validating provisions in their wills legislation. Before these were enacted, many wills foundered on the shoals of the formal requirements of the legislation because they did not comply strictly with those requirements. Since this clearly defeated the intentions of the testators, the validating provisions were welcomed by the practicing bar. They have saved many a will over the years. But the language of the several statutes varies. Some validating provisions require partial or substantial compliance with the formalities; others do not require any compliance. The Schedule to this blog contains a summary of the Canadian validating provisions.

Manitoba enacted the first validating provision. The initial version of the provision required partial compliance with the formalities, but it was replaced in 1995 and the current provision does not require substantial compliance with the formalities. Section 23 of the Wills Act[2] provides in part:

… if the court is satisfied that a document or any writing on a document embodies

(a) the testamentary intentions of a deceased; …

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 … be fully effective … as the will of the deceased …

Many of the other Canadian validating provisions are based on the Manitoba provision, but not all. Thus, for example, section 70 of the Prince Edward Island Probate Act[3] requires that the document be signed by the deceased. Other validating provisions do not use the language ‘not executed in compliance with any or all of the formal requirements’. Thus, for example, Ontario’s provision, section 21.1 of the Succession Law Reform Act,[4] scheduled to come into force at the beginning of 2022, speaks of a document ‘that was not properly executed or made under this Act’. The Alberta legislation also appears to be more restrictive. Section 37 of the Wills and Succession Act[5] provides that the court may order that a writing is valid as a will, even though it does not comply with certain formal requirements, if ‘satisfied on clear and convincing evidence’ that the writing sets out the deceased’s testamentary intentions and was intended as his or her will. However, section 37 does not waive the requirement that a will must be signed by the testator. Thus, this validating provision is also a partial compliance one.

The British Columbia provision is perhaps one of the broadest. Section 58 of the Wills, Succession and Administration Act[6] provides in part:

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

(a) the testamentary intentions of a deceased person,

(3) Even though the making … of a will does not comply with this Act, the court may, as the circumstances require, order that a record or document or writing … be fully effective as though it had been made

(a) as the will or part of the will of the deceased person,

… or

(c) as the testamentary intention of the deceased person.

The differences are apt to lead to different results. Woods v. Cannon[7] is an example. The testator met with a lawyer to take instructions for her will and an appointment was scheduled to execute it. However, she died suddenly without executing the will. Her sisters brought an application for a declaration that her handwritten instructions, or the instructions prepared by the solicitor constituted her testamentary intentions and should be validated as her will. However, the court refused to validate them, even though the instructions prepared by the solicitor accurately reflected the testator’s instructions, since the Alberta validating power does not permit validation if the document lacks the testator’s signature.

George v. Daily[8] is a somewhat similar case. The testator had discussed his desire to make certain changes in his will with his accountant. The accountant wrote a letter to the testator’s lawyer setting out the changes and the lawyer confirmed the desired changes with the testator. However, there was no evidence that a revised will was drafted and the testator died two months later. The trial judge found that the accountant’s letter was a valid will under the Manitoba validating provision, but the Manitoba Court of Appeal reversed on the ground that accountant’s letter did not reflect the deceased’s testamentary intentions.[9] In contrast, in Re Estate of Jean Agnes MacDonald Marsden[10] the New Brunswick courts validated a will for which the testator (who was in hospital with a terminal illness) had given instructions to a solicitor but which she was unable to execute before she died.

Since the British Columbia validating provision is one of the least restrictive, it stands to reason that courts in that jurisdiction more readily validate wills even if they do not comply with any of the statutory formalities.

An early BC case is Re Young Estate.[11] The testator left a will made in 2009 in which she named Canada Trust as her executor. She died in 2014 in her home. A representative from Canada Trust attended the home and found two documents on the dining room table. The first was a signed document dated in 2013. The second was unsigned and was dated  four months later. The first document listed several people as beneficiaries and listed items of personal property to be given to them. On the date she made the first document the deceased invited a friend out to lunch, handed her an unsigned copy of the document and asked her to ensure that the beneficiaries named in it received the items named. The second document merely confirmed her instructions to her friend and contained a few other wishes. The executor brought an application for a determination whether the two documents could be validated. The court held that whether the court should validate a non-compliant document depends very much on the facts of each case. Two criteria must be satisfied: (1) whether the document is authentic; and (2) whether it represents the deceased’s testamentary intentions in the sense that it records a deliberate or fixed and final expression of intention about the disposition of the deceased’s property at death. Factors that may be relevant in a particular case include: ‘the deceased’s signature, the deceased’s handwriting, witness signatures, revocation of previous wills, funeral arrangements, specific bequests and the title of the document’.[12] Significantly, the court added the following caveat:

37 While imperfect or even non-compliance with formal testamentary requirements may be overcome by application of a sufficiently broad curative provision, the further a document departs from the formal requirements the harder it may be for the court to find it embodies the deceased’s testamentary intention

The court concluded that the first document recorded the testator deliberate expressions of her wishes. It was particularly significant that the document was signed by her since that signalled her knowledge and approval of the contents. Moreover, the document was consistent with her will. Thus, the court validated the first document. But it refused to validate the second, since it contained no more than an expression of the deceased’s non-binding wishes, was not signed, and differed from her will.

The next case is Re Hadley Estate.[13] it was the first occasion for the Court of Appeal to consider the BC validating provision. The testator had a formal  will made in 2008, but after she died at age 93 in 2015, a friend found the deceased’s personal journal in a valise that the deceased had entrusted to the friend and asked her to keep safe. The journal contained an entry, which the deceased wrote in 2014 and which she entitled, ‘This my last Will’. The document purported to leave her estate to three individuals whom she had befriended during one of her activities as a community activist. She signed the document. She also wrote that she wrote the ‘will’ hastily because of health scare and hoped to see a named lawyer in person to ‘write this will’. She was survived by a number of nieces and friends. Canada Trust, the executor under the 2008 will had written her not long before the 2014 ‘will’ asking her if the 2008 will was still current and enclosing a copy. She made a number of notations on the copy, including her wish to make a new will as soon as possible. She did speak with a representative of Canada Trust and indicated her intention to change her will. However, she was unable to make an immediate appointment to do so and died in hospital.

The Chambers Judge dismissed Canada Trust’s application for an order validating the 2014 ‘will’. She found the document to be authentic because it was in the testator’s handwriting but concluded that it did not represent the testator’s deliberate and final expression of her testamentary intentions since, among other things, she had written that she wanted to make a new will, gave no explanation why the document differed from her existing will, and failed to mention the document to her friends. The Court of Appeal held that the Chambers Judge did not err in holding that the 2014 did not represent the testator’s testamentary intentions. The court gave the following outline of the principles to be applied on a validation application: Section 58 of WESA does not require a minimum level of compliance with the statutory formalities. It requires only that the court be satisfied that the document represents the testamentary intentions of the deceased[14] and the material time for determining testamentary intentions is the time the document was created.[15] Sitting as a court of probate, the court must determine ‘on a balance of probabilities, whether a non-compliant document embodies the deceased’s testamentary intentions’ at the material time’. For this purpose, extrinsic evidence of testamentary intent is admissible.[16]

Hadley was followed in 2019 by Re Hubschi Estate.[17] It was an unusual case. The deceased was born in 1961 and was given into the care of the Roman Catholic Children’s Aid Society in Vancouver. At age 3 he was placed in the home of the Stack family under a foster home agreement. The family comprised the parents and five children. The deceased was treated as one of the other children and he treated them as his siblings. Mrs. Stack died in 2011 and divided her estate equally between her children, which included the deceased. The deceased never married, had no children, and died in 2017 of complications from surgery. After he died, his brother made a search for will in his home. When he opened the deceased’s computer, the brother found a document entitled ‘Budget for 2017, which included the following statement: ‘Get a will made out at some point. A5 – way [sic] assets split for remaining brother and sisters. Greg, and at or [sic] Trevor as executor’. Greg was his brother and Trevor was his nephew. The evidence showed that he looked at the document on the day of his death. His birth mother had died, but he was survived by his mother’s sister and a niece, both of whom lived in Switzerland. He had never met them and had had no contact with them. The brother brought an application for an order declaring that the document was the last will of the deceased and that probate be granted to him.

The court held that the document could be validated under s. 58 of WESA. The court considered Re Hadley Estate[18] and its discussion of the relevant principles, as well as three other Supreme Court decision and cases from other jurisdictions. The court found that the document did not disinherit any usual beneficiaries, was rational on its face, and benefited exactly those one would expect. The court concluded that the document on the deceased’s computer had been made by him. It also found that it represented a deliberate or fixed and final expression of his intentions to distribute his property among his family members. Although the document said, ‘Get a will made at some point’, the court held that in view of the deceased’s history, his relationship with the Stack children and their relationship with him, his deteriorating health, the division of his estate among his brothers and sisters, and the fact that he reviewed the document on the day of his death, it contained the deceased’s testamentary intentions. Consequently, the court validated the document.

The result is defensible on the ground that it made sense to leave the estate to the only family the deceased knew, rather than to his birth family whom he did not know at all. But with respect, I find that the facts the court used to support validation to overcome the statement in the will about getting a will made at some point, inadequate as proof that the document represented his deliberate or fixed and final expression of his intentions. Moreover, the court failed to distinguish Re Hadley Estate, in which the document contained a similar statement.

This brings me finally to Bishop Estate v. Sheardown.[19] The testator, Ms Bishop, died 20 July 2020. She had made a will in 2014 in which she named her husband as her sole beneficiary and the Kelowna General Hospital Foundation as the substitute beneficiary. Her husband predeceased her. Thereafter she sold her property outside the city and moved into a mobile home in Kelowna. For the latter part of her life the deceased suffered from a rare autoimmune disease that required monthly intravenous treatments that were enervating and left her feeling tired. In 2016, her nephew, Mr Sheardown, and his wife moved to Kelowna and became very close with her. In December 2019 the testator was admitted to hospital because of her health condition and moved into a care home in February 2020. In early February she met with a solicitor from the same firm that prepared the 2014 will. He reviewed that will with her and she instructed him to draft a new one naming Ms Sheardown as executor, removing the gift to the Foundation, including a couple of modest gifts to charities and the Sheardown’s daughter, and giving the residue equally to the Sheardowns, with a gift over to their children. The solicitor prepared the will and sent it to the testator for review. On 3 March 2020 the testator delivered a handwritten note to the solicitor to make a couple of minor changes but that no charities were to receive any gifts. She did not sign the note. The solicitor prepared the final draft of the 2020 will and instructed his assistant to contact the testator. Ms Bishop made an appointment to see the solicitor on 20 March 2020. However, she cancelled the appointment on 19 March and she failed to sign the will before she died. While the reasons for the cancellation were hearsay, there was clear evidence that because of COVID-19 Ms Bishop’s care home prohibited residents from leaving the home except for medical appointments and did not permit visitors at the time. The executor under the 2014 will sought the court’s direction whether the unexecuted 2020 will could be validated under s. 58 of WESA.

The court considered a number of cases, including Re Young Estate and Re Hadley Estate and concluded on the basis of Hadley that it should be satisfied that the will is (a) authentic; and (b) represents Ms Bishop’s deliberate or fixed and final intentions about the disposition of her property on her death. Justice Matthews had no difficulty in finding the will authentic on the facts. On the issue of fixed and final intentions, she held that this has two dimensions: (1) whether its departure from the formal testamentary requirements made it impossible to establish testamentary intention; and (2) whether the failure to execute the 2020 will from the time it was ready for execution until Ms Bishop’s death nullified any testamentary intention Ms Bishop may have had when she made her appointment to execute it.

Justice Matthews noted that in considering the departure from the formal testamentary requirements a court will normally consider the following among other factors: (1) whether the document has the hallmarks of being made to record the deceased’s fixed and final intentions and whether it was made in a context that supports that conclusion; (2) whether the document uses the language of a will; (3) whether the deceased hired a lawyer to draft it; (4) whether, if handwritten, it is in the deceased’s handwriting; (5) whether it was signed and witnessed; (6) whether it revokes previous wills; and (7) whether it prescribes funeral arrangements. The 2020 will departed from the formal testamentary requirements in that it was not signed or witnessed. But on the facts that could be explained. And so Justice Matthews found that that the 2020 will represented Ms Bishop’s fixed and final intention on the date she made an appointment to execute it. Moreover, her failure to execute it during the following four months were readily explained by the fact that she was prevented from leaving her care home during the pandemic or to have the solicitor attend at the care home for her to execute the will. Although the province put in place remote execution procedures for wills on 19 May 2020, Ms Bishop seems not to have been aware of them and therefore her failure to execute the will did not, in the circumstances, mean that she changed her testamentary intentions. Justice Matthews was alive to the fact that this was not a case of imperfect compliance with the formal requirements, but a case of non-compliance, but held that this is not a bar to validating a will under s. 58. In the circumstances she held that the non-compliance did not prevent the court from directing that the 2020 will be fully effective.

I cannot really find fault with the decision. Justice Matthews thoroughly addressed all relevant issues in Bishop and went to great lengths to demonstrate that the 2020 will did contain Ms Bishop’s testamentary intentions. At paragraph 9, she even repeated and considered paragraph 37 of Re Young Estate,[20] in which Justice Dickson quoted the following statement from the judgment of Philp JA in George v Dailey:[21] ‘the further a document departs from the formal requirements the harder it may be for a court to find it embodies the deceased’s testamentary intentions’.

Nevertheless, cases like Bishop and Hubschi leave me dissatisfied, but my concern is primarily with the validating provision that permitted the courts to reach those decisions. After all, section 58 does not demand any compliance with the formal requirements for making a will. And that concerns me. All wills statutes contain formal requirements, but the validation provisions in some of them effectively dismiss them in order to reach a desirable result. Of course, the formal requirements continue to serve an important purpose in that they ensure that most wills can be probated quickly. But I prefer a validating provision that requires at least some minimal observance of the formal requirements, such as a signature. I appreciate that many will disagree with me, because they regard the broad approach used in the non-compliance provisions desirable. And that is understandable. But I am glad that the new Ontario provision appears to suggest that the deceased must have made some attempt to execute the document.

SCHEDULE

Summarizing the Canadian Validating Provisions

This Schedule addresses only compliance or non-compliance with the statutory formal requirements for wills. All the validating provisions insist that the document must contain, as one would expect, the testamentary intentions of the deceased.

1. Non-compliance

Jurisdictions in which the court may validate a will whether it does not comply or complies only partially with the statute’s formal provisions. Typical language in the validating provision is ‘notwithstanding that the writing was not executed in compliance with the formal requirements imposed by’ the Act. But the language of the statutes differs somewhat in this respect.

Indian Act Regulations, CRC 1978, c. 954, s. 15: ‘whether or not [the instrument] conforms with the requirements of the laws of general application in force in any province’.[22]

Wills, Estates and Succession Act, SBC 2009, c. 13, s. 58(3): ‘even though the making … of a will does not comply with this Act’.

Wills Act, CCSM, c. W150, s. 23: ‘notwithstanding that the document or writing was not executed in compliance with any or all of the formal requirements imposed by this Act’.

Wills Act, RSNB 1973, c. W-9, added by SNB 1997, c. 7, s. 1: ‘not executed in compliance with the formal requirements’.

Wills Act, RSNS 1989, c. 505, s. 8A, added by SNS 2006, c. 49, s. 2: ‘not executed in compliance with the formal requirements’.

Uniform Wills Act (2015), Uniform Law Conference of Canada, https://www.ulcc-chlc.ca/ULCC/media/EN-Uniform-Acts/Uniform-Wills-Act.pdf, s. 10: ‘despite that the document was not made in accordance with [the formal requirements of the Act] or is in electronic form’. Section 11 makes a similar provision for alterations. Section 12 makes provision for electronic wills.

2. Partial or Substantial Compliance

Wills and Succession Act, SA 2010, c. W-12.2, s. 37: ‘despite the fact that the writing was not made in compliance with [specified formal requirements]’, but it does require the testator’s signature. Section 37 makes the same provision for alterations.

Succession Law Reform Act, RSO 1990, c. S.26, s. 21.1(1), added by SO 2021, c. 4, Sched. 9, s. 5: ‘a document or writing that was not properly executed or made under this Act’ (emphasis supplied). Note that although the amending Act received Royal Assent on 19 April 2021, s. 21.1 will come into force on a day named by proclamation of the Lieutenant Governor that is not earlier than 1 January 2022 (see SO 2021, c. 4, Sched. 9, s. 9(4)).

Probate Act, RSPEI 1988, c, P-21, s. 70: ‘notwithstanding that the document or writing was not executed in compliance with all the formal requirements’ (emphasis supplied).

Civil Code of Quebec, LRQ, c. C-1991, art. 714: ‘does not fully meet the requirements’.

Wills Act, SS 1996, c. W-14.1, s. 37: ‘not executed in compliance with all the formal requirements’ (emphasis supplied).

[1]    2021 BCSC 1571.

[2]    CCSM c. W150, emphasis supplied. All of the statutes apply not only to the making of a will or part of a will, but also to its revocation, alteration, or revival. For simplicity’s sake I have not reproduced those aspects of the statutes in this blog.

[3]    RSPEI 1988, c. P-21.

[4]    RSO 1990, c. S.26, added by SO 2021, c. 4, Sched. 9, s. 5.

[5]    SA 2010, c. W-12.2.

[6]    SBC 2009 c. 13 (‘WESA’).

[7]    2014 ABQB 614.

[8]    (1997), 143 DLR 4th (Man CA).

[9]    For a similar case, see Sawatzky v. Sawatzky Estate, 2009 MBQB 222.

[10]   2017 NBQB 199, affirmed sub nom. Marsden v. Talbot 2018 NBCA 82.

[11]   2015 BCSC 182, 5 ETR 4th 161.

[12]   Ibid. para. 36.

[13]   2017 BCCA 311.

[14]   Ibid., para. 35.

[15]   Ibid., para. 37.

[16]   Ibid., para. 40

[17]   2019 BCSC 2040.

[18]   Footnote 13, supra.

[19]   Footnote 1, supra.

[20]   Footnote 11, supra.

[21]   Footnote 8, supra, para. 81.

[22]   See also Indian Act, RSC 1985, c. I-5, s. 45(2), which permits the Minister to accept as a will any written instrument signed by an Indian that disposes of his property on his death.

This paper is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This paper is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.

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