Estate of RM, 2022 NUCJ 2,[1] concerned an application by the Public Trustee of Nunavut for advice and direction on whether an unsigned, handwritten Inuktitut document purportedly executed by the deceased constituted a valid will.

Background Facts

RM (the “Deceased”) passed away on September 9, 2016, and was survived by five children, including a minor (the “children”). The Deceased worked as a schoolteacher for over 30 years in Nunavut and lived at her home located in Nunavut (the “Property”) for various years.

The Deceased was battling lung cancer and was hospitalized following the worsening of her condition. Daughter X (“X”) alleged that while she was in the Deceased’s hospital room, the Deceased executed a purported will (the “2016 Document”). Following the Deceased’s death, X began to occupy the Property. However, the children were under the impression that the Deceased intestate.[2]

At daughter Y’s (“Y”) request, the Public Trustee administered the Deceased’s estate (the “Estate”) as an intestacy. X agreed with Y, and so X renounced her right to administer the Estate on March 6, 2017. Thereafter, Letters of Administration were issued for the Estate on January 24, 2018.[3]

Around September 2017, the Public Trustee received by fax, a copy of the unsigned 2016 Document, which appeared to be the Deceased’s Will in Inuktitut along with a handwritten English translation. The Public Trustee obtained its own translation of the unsigned document, which differed from the translation provided in September 2017.[4]

On October 24, 2018, X provided the Public Trustee with the original 2016 Document, without any details or explanation.

The Court determined that X sent the 2016 Document to the Public Trustee and inferred that she prepared the translation, which differed from the independent translation obtained by the Public Trustee.

In late 2018, the Deceased’s remaining children requested that the Public Trustee sell the Property and distribute the proceeds of sale to the Deceased’s heirs. On June 26, 2019, X requested that the Property vest in herself and the Deceased’s minor daughter, asserting that the 2016 Document reflected the Deceased’s wishes.[5]

Issues

The Court addressed two issues:

1. Whether the 2016 Document was the valid Last Will and Testament; and
2. If so, how it should be interpreted.

Analysis

X’s affidavit contained inconsistencies about her presence during the Deceased’s alleged drafting of the 2016 Document, which the Court found hard to believe. Initially, X claimed she was present but later stated she was not. The Court noted X’s position that the 2016 Document favoured her regarding the Property.[6]

Y and Z expressed doubts about the authenticity of the 2016 Document, citing that the handwriting was messy and inconsistent with the Deceased’s neat style and use of “little syllabics.” While Deceased’s illness could’ve explained the inconsistent penmanship, it did not explain the change in syllabic form. On this basis, the Court found that Y and Z’s accounts were more credible than X’s.[7]

The Court questioned why X delayed disclosure of the 2016 Document for a year after the Deceased’s death, or why X agreed with Y that the Estate should be administered. These circumstances undermined the Court’s confidence that the Deceased wrote the 2016 Document.[8]

Applying Section 5.1 of the Wills Act, the Court held that although handwritten Wills may be valid without witnesses, an unsigned document requires clear and convincing evidence that the Deceased intended the writing to constitute a Will.[9] This was not established on a balance of probabilities by X.

The court stated that a Will without a signature is not “fatal to its validity”:[10]

To find that the document is a valid will, I must be satisfied on a balance of probabilities that there is “clear and convincing evidence that the deceased … intended the document or writing to constitute a will.” It follows that this is an intensely case-specific fact-driven process”.[11]

Nonetheless, X was unable to provide clear and convincing evidence that the Deceased intended that the 2016 Document serve as her Will. On this basis, the Court determined that the alleged Will was invalid. The Court ordered the distribution of the Estate according to the Intestate Succession Act.[12]

Concluding Remarks

The Court emphasized that, while a missing signature from a testamentary document is not necessarily fatal, validating an unsigned writing is a fact driven exercise that requires persuasive proof of testamentary intent.

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[1] Estate of RM, 2022 NUCJ 2

[2] Ibid at para 1

[3] Ibid at para 5

[4] Ibid at para 6

[5] Ibid at para 7

[6] Ibid at para 2

[7] Ibid at para 20

[8] Ibid at para 11

[9] Ibid at para 22

[10] Ibid at para 11

[11] Ibid at para 12

[12] Ibid at para 24