In Blustein Estate (Re),[1] the King’s Bench of Manitoba considered whether long-lost handwritten notes from 1972 and 1994 ought to be admitted to probate. In the Court’s assessment, the Honourable Justice Greenberg considered the validity of the documents and whether the trusts, as worded, can be implemented or if the cy-près doctrine ought to be invoked.

Background:

Minnie Blustein (“Ms. Blustein”) passed away on October 22, 2017 at the age of 88.[2] At the time of her death, she had been a ward of the Public Guardian and Trustee (“PGT”) for nearly 10 years.[3] Ms. Blustein was predeceased by her parents, had no spouse, no children, and no siblings.[4] As such, failing the admission of the document(s) to probate, Ms. Blustein’s estate would be administered pursuant to The Intestate Succession Act.[5]

The documents were found by the PGT when they were cleaning out Ms. Blustein’s house. Both the documents were entirely handwritten and signed by Ms. Blustein.[6] The documents were compared to other known samples of Ms. Blustein’s handwriting and the analysis indicated both documents were authentic.[7]

The documents’ distributions are as follows:

The 1972 Document:

“I, Minnie Blustein, not feeling in very good health, make this will, that in the event of my demise, everything I own should be used for (Jewish children) orphanage in Israel.”[8]

 The 1994 Document: “Blustein Family Trust”

“To any relations or friends who feel that they are entitled to my estate I leave the sum of one dollar which is more than they ever gave me.

The estate I leave in the hands of the public trustee, the interest from Canada Savings Bonds into which everything is to be invested and the cash is invested now to be divided into 3 equal parts in the names of Bessie Blustein, Max Blustein, Minnie & given scholarships for the needy – 50% of the interest is to be reinvested as well as the bonds which become due yearly.  5000.00 scholarships.”     [names crossed out in original]

Analysis

Is the 1972 Document or 1994 Document a Valid Will?

The analysis begins by citing the statutory requirements that a holograph will must satisfy to be admitted to probate. Pursuant to The Court of King’s Bench Surrogate Practice Act,[9] the Court must be satisfied that the entire document is in the testator’s handwriting, and at the time it was signed, the testator must have reached the age of majority and been of sound mind.[10]

While the Court acknowledges there is no dispute regarding the documents ability to satisfy the formalities required for a holographic will under section 6 of The Wills Act,[11]  counsel for the intestacy beneficiaries argues the documents lack a ‘clear testamentary intention’.[12]

The Court notes that the determination of a fixed and final testamentary intention is a fact specific exercise.[13] The Court then references relevant caselaw as it pertains to fixed and final intentions distinguishing George v. Daily,[14] Nicklen Estate (Re),[15] and Popowich Estate[16] from the case at bar.

The presiding Justice, Justice Greenberg, favours the approaches taken in Casavechia v. Noseworthy[17] and Canada Permanent Trust Co. v. Bowman[18]. Both cases held testamentary intention may be evidenced despite the use of non-typical testamentary language. Consequently, in regard to the 1972 document, the Court emphasizes Ms. Blustein’s usage of the term “will” and her usage of the phrase “in the event of my demise”.[19] In regard to the 1994 document, the court highlights Ms. Blustein’s reference to her “estate” and how it ought to be distributed.[20]  Ultimately, the Court holds that the language in both documents indicates a “fixed and final expression of intention as to the disposal of property upon death”[21]

Capacity

The Court begins the capacity inquiry by citing Vout v Hay[22] for the proposition that the propounder of the will must establish that the testator had a “sound and disposing mind and memory.”[23] Insofar as holographic wills are concerned, given there are no witnesses at the time of signing, people who knew the testator at the time the will was executed are able to provide evidence.[24] Given the isolation of Ms. Blustein, the propounder was unable to locate anyone who knew the testator when the will was written. As a result, the Court was required to rely on Vout v Hay once again, this time for the presumption of capacity. Further, the Court cited Robitaille v. Robitaille Estate and Anderson Estate, Re, [25] as authorities for extending the presumption of capacity to holographic wills.

Given that the holographic will in question met all the formalities for due execution, the Court found that the presumption of capacity applied to Ms. Blustein. Additional circumstantial evidence was considered but did not seem to be the determinative factor; for example, the Court considered the fact that Ms. Blustein was appointed as the administrator of her mother’s estate in January 1999. In the end, the Court found that the intestacy beneficiaries failed to rebut the presumption of capacity[26]

Cy-près 

In her 1994 Document, Ms. Blustein left her estate in the hands of the “public trustee” (In 1994, the Public Guardian and Trustee was known as the “Public Trustee”).[27] However, the Court determines that while the PGT can act as the administrator of Ms. Blustein’s estate, they cannot act as trustee of an endowment fund; therefore, the trust as worded cannot be implemented.[28]

The Court finds that Ms. Blustein’s language is not ambiguous, and the object of the bequest is clear. As such, the Court holds that this is not a situation where the cy-près doctrine should be invoked to find an object as near as possible to the object described in the will.[29]

Final Remarks

Ultimately, the King’s Bench of Manitoba admitted the 1994 document to probate, finding that it reflected a clear testamentary intention and charitable purpose, while the earlier 1972 document was effectively revoked by operation of s. 16(b) of The Wills Act.[30] The case underscores the enforceability of holographic wills when formalities are met and testamentary intent is evident, even in the absence of witnesses or surviving family.

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[1] Blustein Estate (Re), 2025 MBKB 60 (CanLII). (“Blustein Estate”)

[2] Blustein Estate, at para 3.

[3] Ms. Blustein and her property became the subject of PGT management in 2007 after an order was issued by the Director of Psychiatric Services under s. 61 of The Mental Health Act, C.C.S.M. c. M10.

[4] Blustein Estate, at para 4.

[5] The Intestate Succession Act, C.C.S.M. c. 185, at section 5-6.

[6] Blustein Estate, at para 4.

[7] Ibid.

[8] Blustein Estate, at para 5.

[9] The Court of King’s Bench Surrogate Practice Act, C.C.S.M. c. C290, s. 22(5).

[10] Blustein Estate, at para 10.

[11] The Wills Act, C.C.S.M. c. W150, s. 6.

[12] Blustein Estate, at para 13; also see Bennett v. Toronto General Trusts Corp. 1958 CanLII 49 (SCC), [1958] S.C.R. 392 at pp 396, which requires a “deliberate or fixed and final expression of intention to the disposal of property”.

[13] Blustein Estate, at para 15.

[14] George v Daily, 1997 CanLII 17825 (MB CA).

[15] Nicklen Estate (Re), 2021 SKQB 208.

[16] Popowich Estate, 2012 ABQB 665.

[17] Casavechia v. Noseworthy, 2015 NSCA 56.

[18] Canada Permanent Trust Co. v. Bowman, 1962 CanLII 81 (SCC).

[19] Blustein Estate, at para 21.

[20] Ibid.

[21] Ibid.

[22] Vout v. Hay, 1995 CanLII 105 (SCC).

[23] Blustein Estate, at para 30.

[24] Ibid.

[25] Robitaille v. Robitaille Estate, 2011 NSSC 203; and Anderson Estate, Re, 2009 ABQB 285.

[26] Blustein Estate, at paras 37-38.

[27] Blustein Estate, at para 39.

[28] Ibid.

[29] Blustein Estate, at para 44.

[30] The Wills Act, CCSM c W150 at section 16(b).