Application of Alberta’s Validating Power: Re McCarthy Estate
Re McCarthy Estate[1] represents a very helpful discussion of Alberta’s Dispensing Power. The power is contained in s 37 of the Wills and Succession Act.[2] It provides:
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, … 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.
Section 15 contains the standard formalities provision that a testator must sign the will in the presence of two witnesses, present at the same time, each of whom must sign in the presence of the testator. Further, s 14 provides that a will must be made in writing and ‘must contain a signature of the testator that makes it apparent on the face of the document that the testator intended, by signing, to give effect to the writing in the document as the testator’s will’.
The deceased died unexpectedly on 27 September 2019. Among her effects in her home office was a document entitled, ‘This Is the Last Will and Testament of me, Pamela Beverly McCarthy’. It was made on her computer and was signed and dated 13 August 2019. It named executors, listed and disposed of all the deceased’s property, and made provision for organ donations and the disposition of her remains. Thus, it was clearly testamentary in nature. The document consisted of five numbered sheets of paper. It bore the deceased’s signature on page 4 and her initials on every page. Page 5 was entitled ‘Memorandum of Personal Property’ and disposed of some of the deceased’s real and personal property, as well as the residue of her estate. The document was not witnessed.
Since the document was not witnessed, the executors brought an application under s. 37 for an order validating it as the testator’s will. The chambers judge dismissed the application because he was not satisfied that the writing was the final expression of the deceased’s testamentary wishes and opined that there was insufficient evidence about the creation of the document. The executors appealed and the Court of Appeal allowed the appeal.
The court expressed the opinion that the only reasonable inference was that the document set out the testamentary intentions of the deceased, and that the document on its face made it apparent that the deceased, by signing the document intended to give effect to it as her will, all as required by s. 37. Further, there was no challenge to the authenticity of the testator’s signature.[3]
The court noted that section 37 is designed to promote the policy objective of enabling the testamentary wishes of a deceased person even though it has not been properly executed. It is a remedial provision and should be interpreted accordingly, so long as there are adequate safeguards of authenticity, as there were in this case.
When the Act was in the draft stage, I raised an objection against the wording of s 37 that requires the court to be ‘satisfied on clear and convincing evidence’ that the document sets out the deceased’s testamentary wishes and that she intended to give effect to it as her will. My concern was that, for the purpose of applying the section, the wording seemed to change the civil standard of proof from the accepted standard, that is, proof on a balance of probabilities. Thankfully, the court cleared up any doubt about the matter. It considered the issue by reference to FH v McDougall[4] and held that the phrase ‘clear and convincing evidence’ should not be read as an elevation of the burden of proof. ‘Rather it is a signal to the court that the quality of the evidence should carefully be considered when deciding if the burden of proof has been met’ (para 11). In this case, because of the absence of witnesses, the ‘clear and convincing evidence’ should be considered in the context of the question whether the document was authentic (para 13).
The other issue raised was whether the fifth page, ‘Memorandum of Personal Property’ was part of the will since it appeared after the testator’s signature. This concerned the effect of s 19(2) of the Act, which states, ‘A testator is presumed not to have intended to give effect to any writing that appears below the testator’s signature’. The court resolved the problem by noting the fifth page was part of the same single document on the testator’s computer and that there were two references to the ‘Memorandum of Personal Property’ on page 1 of the document. The court concluded that those references displaced the presumption in s 19(2). But quite apart from that, the court held that the efficacy of the document as a will depended on dispositive provisions about significant portions of the deceased’s will and without that page the document would be incomplete as a will and would fail accurately to reflect the deceased’s testamentary intention. Thus, it held that the entire document constituted the valid will of the deceased.
Since all five pages contained the testator’s initials (see para 3), there may be another possible way to address the problem that the fifth page followed the signature page (page four). There is case law to the effect that a testator’s initials may satisfy the requirement that the will be signed by the testator, assuming that she intended the initials to operate as her signature.[5] Thus, the initials on page five could be regarded as the testator’s signature to that page. Indeed, other ‘signatures’, such as a printed signature,[6] a stamped signature,[7] and a signature consisting of something other than the testator’s full signature, such as ‘Your loving mother’,[8] will also suffice, again, provided that the testator intended it to serve as her signature.
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[1] 2021 ABCA 403, 37 ETR 4th 1
[2] SA 2010,, c W-12.2.
[3] The reader will observe that the Alberta Act requires that a will be signed by the testator (s 14). In that respect it differs from most other Canadian dispensing powers.
[4] 2008 SCC 53 at para 40, [2008] 3 SCR 41.
[5] See, e.g., Re Schultz Estate (1986), 21 ETR 313 (Sask CA).
[6] Re Clarke (1982), 305 (Ont Surr Ct, dictum).
[7] Re Clarke Estate 2008 CarswellOnt 5328 (SCJ).
[8] Re Smith, [1948] 2 WWR 55 (Sask Surr Ct)
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Written by: Albert Oosterhoff
Posted on: June 14, 2022
Categories: Commentary
Re McCarthy Estate[1] represents a very helpful discussion of Alberta’s Dispensing Power. The power is contained in s 37 of the Wills and Succession Act.[2] It provides:
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, … 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.
Section 15 contains the standard formalities provision that a testator must sign the will in the presence of two witnesses, present at the same time, each of whom must sign in the presence of the testator. Further, s 14 provides that a will must be made in writing and ‘must contain a signature of the testator that makes it apparent on the face of the document that the testator intended, by signing, to give effect to the writing in the document as the testator’s will’.
The deceased died unexpectedly on 27 September 2019. Among her effects in her home office was a document entitled, ‘This Is the Last Will and Testament of me, Pamela Beverly McCarthy’. It was made on her computer and was signed and dated 13 August 2019. It named executors, listed and disposed of all the deceased’s property, and made provision for organ donations and the disposition of her remains. Thus, it was clearly testamentary in nature. The document consisted of five numbered sheets of paper. It bore the deceased’s signature on page 4 and her initials on every page. Page 5 was entitled ‘Memorandum of Personal Property’ and disposed of some of the deceased’s real and personal property, as well as the residue of her estate. The document was not witnessed.
Since the document was not witnessed, the executors brought an application under s. 37 for an order validating it as the testator’s will. The chambers judge dismissed the application because he was not satisfied that the writing was the final expression of the deceased’s testamentary wishes and opined that there was insufficient evidence about the creation of the document. The executors appealed and the Court of Appeal allowed the appeal.
The court expressed the opinion that the only reasonable inference was that the document set out the testamentary intentions of the deceased, and that the document on its face made it apparent that the deceased, by signing the document intended to give effect to it as her will, all as required by s. 37. Further, there was no challenge to the authenticity of the testator’s signature.[3]
The court noted that section 37 is designed to promote the policy objective of enabling the testamentary wishes of a deceased person even though it has not been properly executed. It is a remedial provision and should be interpreted accordingly, so long as there are adequate safeguards of authenticity, as there were in this case.
When the Act was in the draft stage, I raised an objection against the wording of s 37 that requires the court to be ‘satisfied on clear and convincing evidence’ that the document sets out the deceased’s testamentary wishes and that she intended to give effect to it as her will. My concern was that, for the purpose of applying the section, the wording seemed to change the civil standard of proof from the accepted standard, that is, proof on a balance of probabilities. Thankfully, the court cleared up any doubt about the matter. It considered the issue by reference to FH v McDougall[4] and held that the phrase ‘clear and convincing evidence’ should not be read as an elevation of the burden of proof. ‘Rather it is a signal to the court that the quality of the evidence should carefully be considered when deciding if the burden of proof has been met’ (para 11). In this case, because of the absence of witnesses, the ‘clear and convincing evidence’ should be considered in the context of the question whether the document was authentic (para 13).
The other issue raised was whether the fifth page, ‘Memorandum of Personal Property’ was part of the will since it appeared after the testator’s signature. This concerned the effect of s 19(2) of the Act, which states, ‘A testator is presumed not to have intended to give effect to any writing that appears below the testator’s signature’. The court resolved the problem by noting the fifth page was part of the same single document on the testator’s computer and that there were two references to the ‘Memorandum of Personal Property’ on page 1 of the document. The court concluded that those references displaced the presumption in s 19(2). But quite apart from that, the court held that the efficacy of the document as a will depended on dispositive provisions about significant portions of the deceased’s will and without that page the document would be incomplete as a will and would fail accurately to reflect the deceased’s testamentary intention. Thus, it held that the entire document constituted the valid will of the deceased.
Since all five pages contained the testator’s initials (see para 3), there may be another possible way to address the problem that the fifth page followed the signature page (page four). There is case law to the effect that a testator’s initials may satisfy the requirement that the will be signed by the testator, assuming that she intended the initials to operate as her signature.[5] Thus, the initials on page five could be regarded as the testator’s signature to that page. Indeed, other ‘signatures’, such as a printed signature,[6] a stamped signature,[7] and a signature consisting of something other than the testator’s full signature, such as ‘Your loving mother’,[8] will also suffice, again, provided that the testator intended it to serve as her signature.
—
[1] 2021 ABCA 403, 37 ETR 4th 1
[2] SA 2010,, c W-12.2.
[3] The reader will observe that the Alberta Act requires that a will be signed by the testator (s 14). In that respect it differs from most other Canadian dispensing powers.
[4] 2008 SCC 53 at para 40, [2008] 3 SCR 41.
[5] See, e.g., Re Schultz Estate (1986), 21 ETR 313 (Sask CA).
[6] Re Clarke (1982), 305 (Ont Surr Ct, dictum).
[7] Re Clarke Estate 2008 CarswellOnt 5328 (SCJ).
[8] Re Smith, [1948] 2 WWR 55 (Sask Surr Ct)
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