In a jurisdictional first, the Yukon Supreme Court in the decision of Fitzgerald v AADWP[1] grapples with a proceeding to validate and rectify an unexecuted will. This decision highlights how the territory’s new succession law provisions can honor a testator’s final intentions even in unprecedented circumstances.
Court Ordered Validation
In or around 2020, there was sweeping reform among the provincial legislatures in succession law legislation. While this is old news to many, it was only recently where the Yukon Supreme Court had its first opportunity to consider these new provisions.[2] The updates to the succession law legislation of the Yukon were relatively similar to those of Alberta and British Columbia which also codify rectification.[3] Consequently, in the case at bar, the Applicant sought to both rectify and validate the non-compliant document purporting it to be testamentary.
Before setting out the relevant facts giving rise to the matter at hand, it may be prudent to provide a brief overview of the relevant legislative provisions at hand. The Wills Act,[4] contains statutory grounds which may allow a court to Validate and/or rectify a non-compliant will. The operative provisions are as follows:
30 Validation of non-compliant will
Court may, on application, order that a writing is valid as a will or a revocation of a will, even if the writing was not made in accordance with this Act, if the Supreme 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 their will or a revocation of their will.
31 Validation of non-compliant alteration or revival
The Supreme Court may, on application, order that a writing, marking or obliteration is valid as an alteration or revival of a will, even if the writing, marking or obliteration was not made in accordance with this Act, if the Supreme Court is satisfied on clear and convincing evidence that the writing, marking or obliteration reflects the testamentary intentions of the testator and was intended by the testator to be an alteration or revival of their will.
32 Rectification and restoration
(1) The Supreme Court may, on application
(a) order that a will be rectified by adding or deleting characters, words or provisions specified by the court, if the Supreme Court is satisfied on clear and convincing evidence that the will does not reflect the testator’s testamentary intentions because of
(i) an accidental slip, omission or misdescription, or
(ii) a misunderstanding of, or a failure to give effect to, the testator’s instructions by a person who prepared the will; or
(b) order that the original words of a will be restored or determined by any means that the Supreme Court considers appropriate if
(i) a writing, marking or obliteration renders part of the will illegible, and
(ii) the writing, marking or obliteration is not a valid alteration under section 11.
(2) Subsection (1) applies to the omission of the testator’s signature only if the Supreme Court is satisfied on clear and convincing evidence that the testator
(a) intended to sign the writing but omitted to do so by pure mistake or inadvertence; and
(b) intended to give effect to the writing as the testator’s will.[5]
In the below Application, Mr. Phillip Fitzgerald (the “Applicant”), a friend of the Deceased, accountant, and proposed executor of the Deceased’s Estate, sought to rectify the absent signature of the Deceased pursuant to section 32(2) of the WA and sought validation pursuant to section 30 of the WA.[6]
Background
The Deceased, a 38-year-old businessman, had been coordinating his testamentary plan with his drafting solicitor since 2020.[7] On August 15, 2024, he emailed his lawyer a finalized draft of the will, stating it contained all his desired changes. Furthermore, he requested a meeting where he could execute the finalized draft.[8]
Tragically, the Deceased died by his own hand on August 17, 2024, before he could execute his will.[9]
Analysis
Given the lack of issued reasons from the Yukon Supreme Court interpreting the new provisions, Justice S. M. Duncan turned to the Jurisdiction of Alberta, which she assessed as having the most helpful jurisprudence given the similarities between legislative language.[10] She finds,
Both the Yukon and Alberta statutes specify that rectification to address the absence of a testator’s signature on the will can occur only on certain conditions: that is, if the omission was by pure mistake or inadvertence.[11]
Consequently, Justice Duncan finds that in the Yukon, as is the case in Alberta, the validation provision cannot be used to address the omission of a testator’s signature because section 32(2) of the WA was drafted specifically to address this issue.[12]
In turning to whether the rectification provision can be applied to the document at hand, the Court acknowledges that the requirement the omission be by pure mistake or inadvertence is a clear limitation of the broad dispensing provision of section 30 of the WA.[13] With respect to interpreting the requirements of “inadvertence” and “pure mistake” the Court asserts that inadvertence may be described as “arising from accidental oversight” whereas it cites Edmunds Estate,[14] to hold that pure mistake ought to be understood as a person thinking that they are doing one thing but in fact does something else.[15]
In applying the facts of the case at hand to the legal framework, the Court finds that the circumstances surrounding the testator’s death ought to be characterized as inadvertence because,
“his choice to die before signing the will is a kind of accidental oversight.”[16]
In considering validation, the Court also finds that the test as per section 30 of the WA, had been satisfied as the evidence before the Court had indicated that the testator’s intentions were “Fixed and Final.”[17]
Accordingly, the writing was rectified to add the Deceased’s signature pursuant to section 32(2) of the WA, and the writing was validated despite its lack of witnesses pursuant to section 30 of the WA.[18]
Final Remarks
Fitzgerald illustrates the practical impact of the territory’s updated succession law provisions, particularly sections 30 and 32 of the WA, in safeguarding testamentary intentions. The Court’s careful distinction between validation and rectification underscores that while validation can confirm the effect of a non-compliant will, rectification is the exclusive mechanism for addressing an unsigned document caused by inadvertence or pure mistake. By drawing on jurisprudence from Alberta, the Court provided clarity on how terms like “inadvertence” and “pure mistake” are to be applied, establishing important precedent for future cases in Yukon.
—
[1] Fitzgerald v AADWP, 2025 YKSC 23 (CanLII). (“Fitzgerald”)
[2] Fitzgerald, at para 20.
[3] Wills and Succession Act, SA 2010, c W-12.2, at section 39; and Wills, Estates and Succession Act, SBC 2009, c 13, at section 59.
[4] Wills Act, R.S.Y. 2002, c. 230, at sections 30-32. (“WA”)
[5] Wills Act, at sections 30-32.
[6] Fitzgerald, at para 3.
[7] Ibid., at paras 9-10.
[8] Ibid., at para 12.
[9] Ibid., at para 13.
[10] Ibid., at para 20.
[11] Ibid., at para 20.
[12] Ibid., at para 21.
[13] Ibid., at para 22.
[14] Edmunds Estate, 2017 ABQB 754, at paras 54-55.
[15] Fitzgerald, at para 23.
[16] Ibid., at para 29
[17] As per George v Daily, (1997), 143 DLR (4th) 273 (MBCA); Fitzgerald, at para 34.
[18] Fitzgerald, at para 38.
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Written by: Grant Swedak
Posted on: December 10, 2025
Categories: Commentary
In a jurisdictional first, the Yukon Supreme Court in the decision of Fitzgerald v AADWP[1] grapples with a proceeding to validate and rectify an unexecuted will. This decision highlights how the territory’s new succession law provisions can honor a testator’s final intentions even in unprecedented circumstances.
Court Ordered Validation
In or around 2020, there was sweeping reform among the provincial legislatures in succession law legislation. While this is old news to many, it was only recently where the Yukon Supreme Court had its first opportunity to consider these new provisions.[2] The updates to the succession law legislation of the Yukon were relatively similar to those of Alberta and British Columbia which also codify rectification.[3] Consequently, in the case at bar, the Applicant sought to both rectify and validate the non-compliant document purporting it to be testamentary.
Before setting out the relevant facts giving rise to the matter at hand, it may be prudent to provide a brief overview of the relevant legislative provisions at hand. The Wills Act,[4] contains statutory grounds which may allow a court to Validate and/or rectify a non-compliant will. The operative provisions are as follows:
30 Validation of non-compliant will
Court may, on application, order that a writing is valid as a will or a revocation of a will, even if the writing was not made in accordance with this Act, if the Supreme 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 their will or a revocation of their will.
31 Validation of non-compliant alteration or revival
The Supreme Court may, on application, order that a writing, marking or obliteration is valid as an alteration or revival of a will, even if the writing, marking or obliteration was not made in accordance with this Act, if the Supreme Court is satisfied on clear and convincing evidence that the writing, marking or obliteration reflects the testamentary intentions of the testator and was intended by the testator to be an alteration or revival of their will.
32 Rectification and restoration
(1) The Supreme Court may, on application
(a) order that a will be rectified by adding or deleting characters, words or provisions specified by the court, if the Supreme Court is satisfied on clear and convincing evidence that the will does not reflect the testator’s testamentary intentions because of
(i) an accidental slip, omission or misdescription, or
(ii) a misunderstanding of, or a failure to give effect to, the testator’s instructions by a person who prepared the will; or
(b) order that the original words of a will be restored or determined by any means that the Supreme Court considers appropriate if
(i) a writing, marking or obliteration renders part of the will illegible, and
(ii) the writing, marking or obliteration is not a valid alteration under section 11.
(2) Subsection (1) applies to the omission of the testator’s signature only if the Supreme Court is satisfied on clear and convincing evidence that the testator
(a) intended to sign the writing but omitted to do so by pure mistake or inadvertence; and
(b) intended to give effect to the writing as the testator’s will.[5]
In the below Application, Mr. Phillip Fitzgerald (the “Applicant”), a friend of the Deceased, accountant, and proposed executor of the Deceased’s Estate, sought to rectify the absent signature of the Deceased pursuant to section 32(2) of the WA and sought validation pursuant to section 30 of the WA.[6]
Background
The Deceased, a 38-year-old businessman, had been coordinating his testamentary plan with his drafting solicitor since 2020.[7] On August 15, 2024, he emailed his lawyer a finalized draft of the will, stating it contained all his desired changes. Furthermore, he requested a meeting where he could execute the finalized draft.[8]
Tragically, the Deceased died by his own hand on August 17, 2024, before he could execute his will.[9]
Analysis
Given the lack of issued reasons from the Yukon Supreme Court interpreting the new provisions, Justice S. M. Duncan turned to the Jurisdiction of Alberta, which she assessed as having the most helpful jurisprudence given the similarities between legislative language.[10] She finds,
Both the Yukon and Alberta statutes specify that rectification to address the absence of a testator’s signature on the will can occur only on certain conditions: that is, if the omission was by pure mistake or inadvertence.[11]
Consequently, Justice Duncan finds that in the Yukon, as is the case in Alberta, the validation provision cannot be used to address the omission of a testator’s signature because section 32(2) of the WA was drafted specifically to address this issue.[12]
In turning to whether the rectification provision can be applied to the document at hand, the Court acknowledges that the requirement the omission be by pure mistake or inadvertence is a clear limitation of the broad dispensing provision of section 30 of the WA.[13] With respect to interpreting the requirements of “inadvertence” and “pure mistake” the Court asserts that inadvertence may be described as “arising from accidental oversight” whereas it cites Edmunds Estate,[14] to hold that pure mistake ought to be understood as a person thinking that they are doing one thing but in fact does something else.[15]
In applying the facts of the case at hand to the legal framework, the Court finds that the circumstances surrounding the testator’s death ought to be characterized as inadvertence because,
“his choice to die before signing the will is a kind of accidental oversight.”[16]
In considering validation, the Court also finds that the test as per section 30 of the WA, had been satisfied as the evidence before the Court had indicated that the testator’s intentions were “Fixed and Final.”[17]
Accordingly, the writing was rectified to add the Deceased’s signature pursuant to section 32(2) of the WA, and the writing was validated despite its lack of witnesses pursuant to section 30 of the WA.[18]
Final Remarks
Fitzgerald illustrates the practical impact of the territory’s updated succession law provisions, particularly sections 30 and 32 of the WA, in safeguarding testamentary intentions. The Court’s careful distinction between validation and rectification underscores that while validation can confirm the effect of a non-compliant will, rectification is the exclusive mechanism for addressing an unsigned document caused by inadvertence or pure mistake. By drawing on jurisprudence from Alberta, the Court provided clarity on how terms like “inadvertence” and “pure mistake” are to be applied, establishing important precedent for future cases in Yukon.
—
[1] Fitzgerald v AADWP, 2025 YKSC 23 (CanLII). (“Fitzgerald”)
[2] Fitzgerald, at para 20.
[3] Wills and Succession Act, SA 2010, c W-12.2, at section 39; and Wills, Estates and Succession Act, SBC 2009, c 13, at section 59.
[4] Wills Act, R.S.Y. 2002, c. 230, at sections 30-32. (“WA”)
[5] Wills Act, at sections 30-32.
[6] Fitzgerald, at para 3.
[7] Ibid., at paras 9-10.
[8] Ibid., at para 12.
[9] Ibid., at para 13.
[10] Ibid., at para 20.
[11] Ibid., at para 20.
[12] Ibid., at para 21.
[13] Ibid., at para 22.
[14] Edmunds Estate, 2017 ABQB 754, at paras 54-55.
[15] Fitzgerald, at para 23.
[16] Ibid., at para 29
[17] As per George v Daily, (1997), 143 DLR (4th) 273 (MBCA); Fitzgerald, at para 34.
[18] Fitzgerald, at para 38.
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