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Wills Act - The Court's Distinction to Order a Will

August 29, 2021

Saskatchewan

,

Canada

Issue

Can a will be admitted to probate if it was not executed in accordance with the required formalities?

Conclusion

Pursuant to s. 37 of The Wills Act, the court may, notwithstanding that a document or writing was not executed in compliance with all the formal requirements imposed by The Wills Act, order that the document or writing be fully effective as though it had been properly executed as the will of the deceased or as the revocation, alteration or revival of the will of the deceased or of the testamentary intention embodied in that other document, where a court, on application is satisfied that the document or writing embodies:

(a) the testamentary intentions of a deceased; or

(b) the intention of a deceased to revoke, alter or revive a will of the deceased or the testamentary intentions of the deceased embodied in a document other than a will. (The Wills Act)

The inquiry under s. 37 of The Wills Act is twofold. First, the court must conclude that the document is testamentary in nature. Second, the document in question must embody the deceased’s fixed intention to deal with his or her property in a particular way. The burden of meeting both of these prerequisites lies upon the shoulders of the proponents of the document as a testamentary document. (Nicklen Estate; Kube v Kube)

The discretionary power the court has to order that a testamentary document is valid notwithstanding the fact the document was not executed in compliance with formal requirements. The law has developed to give great consideration to the true intentions of the testator rather than focusing on the form of the will or other document. (Fitzpatrick v Ollenberger)

The courts have held that s. 37 should be given a broad interpretation, meaning that there is no “minimum” degree of compliance necessary before a court can order a will to be fully effective. (Fitzpatrick v Ollenberger)

In Nicklen Estate, the deceased had a will that met all the formal requirements. However, the will was accompanied by another document – a NAPA Auto Parts receipt – on the back of which the deceased made some handwritten notes with respect to certain property. The executor argued that the handwritten document was a codicil. The Court found that the document was not a testamentary document because it was written on a scrap piece of paper when the deceased was a meticulous person; there were inconsistencies within the tense of the note, and he had used professional legal services in the past.

In Schreiber Estate (Re), Layh J. considered an application pursuant to s. 37 of The Wills Act for an order that a "fill-in-the-blank" will was valid and capable of being probated. The deceased, Eugene F. Schreiber, did not satisfy the requirements of a holograph will, one entirely in his handwriting and signed. Nor did he satisfy the requirements of a formal will, one requiring his signature and that of two witnesses. Layh J. found that the document was testamentary in nature, therefore the formal deficiencies could be rectified by applying s. 37 of The Wills Act.

In Giesbrecht v Giesbrecht, Brown J. considered an application pursuant to s. 37 of The Wills Act for an order that a "fill-in-the-blank" will was valid and capable of being probated. The document was signed by the deceased and one witness. No affidavit of the witness accompanied the document. Brown J. found that the document represented the deceased's testamentary intentions.

In Thorne v Thorne, the applicant applied for a declaration under s. 37 of The Wills Act that a document signed by Richard Bruce Thorne is fully effective as though it had been properly executed as the will of Mr. Thorne. The evidence before the court was that Mr. Thorne signed the document in the presence of two witnesses but only one of those witnesses, Robert Ficklin, signed the document to indicate that he witnessed Mr. Thorne’s signature. The Court dismissed the application under s. 37 of The Wills Act because the evidence was inconclusive regarding the deceased's testamentary intentions.

Law

Section 37 of The Wills Act, 1996, SS 1996, c W-14.1 provides:

Substantial compliance

37 The court may, notwithstanding that a document or writing was not executed in compliance with all the formal requirements imposed by this Act, order that the document or writing be fully effective as though it had been properly executed as the will of the deceased or as the revocation, alteration or revival of the will of the deceased or of the testamentary intention embodied in that other document, where a court, on application is satisfied that the document or writing embodies:

(a) the testamentary intentions of a deceased; or

(b) the intention of a deceased to revoke, alter or revive a will of the deceased or the testamentary intentions of the deceased embodied in a document other than a will.

Section 7 of The Wills Act, 1996, SS 1996, c W-14.1 sets out the formal requirements for a valid will as follows:

7(1) Unless provided otherwise in this Act, a will is not valid unless:

(a) it is in writing and signed by the testator or by another person in the testator’s presence and by his or her direction;

(b) it is apparent on the face of the will that the testator intended to give effect by the signature to the writing signed as his or her will;

(c) the signature is made or acknowledged by the testator in the presence of two or more witnesses who are in the presence of the testator at the same time; and

(d) at least two of the witnesses in the presence of the testator:

(i) attest and sign the will; or

(ii) acknowledge their signatures on the will.

(2) No form of attestation by the witnesses is necessary.

Justice Vancise, in Bunn Estate, Re, 1992 CanLII 8220 (SK CA), held:

[20] I disagree with Professor Harvey that s. 35. I requires some minimum level of compliance. It allows the court to give effect to a document "notwithstanding that the document or writing was not executed in compliance with all the formal requirements". Thus a document could be admitted to probate if the court is satisfied that it expresses the testamentary intention of the deceased, which would include being satisfied that there was no fraud. In both of the cases referred to, not all of the formal requirements were met. The wording of the section indicates that the court can intervene when less than 100% of the formalities have been met but does not say that the section is operative only upon some minimum level of compliance. The latter interpretation would produce an artificial distinction of an unnecessarily technical nature. The word "substantial" has both a qualitative and quantitative meaning. As pointed out by Professor Miller (Substantial Compliance with the Wills Act (1987), 36 Int. & Comparative Law Q. 559, at p. 583) the term "substantial compliance" could be interpreted as referring to the amount of compliance, allowing a document with a single major defect, such as a lack of signature, to go to probate. This was in fact the case in Re Grosert, [1985] 1 Qd. R. 513 (S.A.S.C.). Such a scenario is unacceptable. I must stress that the degree of compliance is not determinative of when s. 35.1 becomes operative but is another factor for the court to consider in determining if a document represents the true testamentary intentions of the deceased. The level of compliance is thus one of many factors to be examined in determining this issue.

In Kube v Kube, 2015 SKCA 49 (CanLII), two of the five nieces and nephews of the deceased found a document in the closet of the deceased's bedroom. The document consisted of two pages of photocopied excerpts from other documents in the deceased's handwriting cut and taped together with portions whited out and replaced with the date “Aug 28” written in blue ink. The document bore a photocopy of the deceased's signature. Ottenbreit J.A. set out the test under s. 37 of The Wills Act as follows:

[18] With respect to whether the Chambers judge applied the wrong standard of proof, I find the Chambers judge was alive to the standard of proof required with respect to evidentiary matters in the circumstances. In two places of his decision, paras. 13 and 43, he refers to the applicable test under s. 37 as whether on a balance of probabilities the August document expresses the testamentary intentions of the deceased. The Chambers judge’s references to being certain about the preparation of the document and other circumstances surrounding the document, properly understood, are merely an expression of his concern that the evidence did not approach a level sufficient to satisfy him on a balance of probabilities that it embodied Goldven’s testamentary intentions so as to fit within s. 37 of the Act. [...]

[19] The argument that no evidence respecting creation of the document is required misses the point. The sole question under s. 37 is whether a document even though it does not comply with the Act nevertheless is testamentary (Langseth Estate v Gardiner (1990), 1990 CanLII 7935 (MB CA), 75 DLR (4th) 25 (Man CA), quoted with approval by Vancise J.A. in Re Bunn Estate, 1992 CanLII 8220 (SK CA), [1992] 4 WWR 240 at 246). This question of whether a document embodies the testamentary intentions of the deceased for the purposes of s. 37 is twofold.

[20] The first aspect of the question, as stated by Gerein J. in Balfour Estate (Re) (1990), 1990 CanLII 7460 (SK QB), 85 Sask R 183 (QB), is whether the document is testamentary in nature:

6 Yet it must be kept in mind that the section’s purpose is to overcome noncompliance with formal requirements. It does not empower the court to render a document testamentary in nature when it is otherwise not so. In the instant case the subject document does not manifest a true testamentary intention and therefore does not meet the threshold requirement of the section.

[21] The second aspect of the question is whether the document represents a deceased’s final wishes as stated in George v Daily (1997), 1997 CanLII 17825 (MB CA), 143 DLR (4th) 273 (Man CA) at 291:

The term “testamentary intention” means much more than a person’s expression of how he would like his/her property to be disposed of after death. The essential quality of the term is that there must be a deliberate or fixed and final expression of intention as to the disposal of his/her property on death: Re Gray; Molinary v. Winfrey, 1960 CanLII 81 (SCC), [1961] S.C.R. 91; and Canada Permanent Trust Co. v. Bowman, 1962 CanLII 81 (SCC), [1962] S.C.R. 711.

In Fitzpatrick v Ollenberger, 2017 SKCA 24 (CanLII), the Saskatchewan Court of Appeal interpreted s. 37 of The Wills Act as follows:

[40] It is also important to note the discretionary power the court has to order that a testamentary document is valid notwithstanding the fact the document was not executed in compliance with formal requirements. The law has developed to give great consideration to the true intentions of the testator rather than focusing on the form of the will or other document. [...]

[41] The courts have held that s. 37 should be given a broad interpretation, meaning that there is no “minimum” degree of compliance necessary before a court can order a will to be fully effective. In Bunn Estate, Re (1992), 1992 CanLII 8220 (SK CA), 100 Sask R 231 (CA), this Court considered whether an unsigned single sheet of paper in the handwriting of the testatrix, which was found in an envelope with a formally-executed will, should be admitted to probate along with the formal will. Justice Vancise concluded that the purpose of s. 35.1 of The Wills Act, RSS 1978, c W-14 (equivalent to s. 37 of the current Act), was to “ensure that the testator’s intention is carried out, not thwarted” despite the noncompliance with the formalities required by the legislation arising out of ignorance or inadvertence (at para 13). He then held that the wording of the section conveyed a broad discretionary power on the courts to validate testamentary documents [..]

[...]

[43] These cases show that the intention of the testator, not the form of the testamentary document, is paramount. A holograph instrument may dictate the disposition of the testator’s property if it manifests the deliberate and final intentions of the testator and the words used convey this intention with sufficient clarity to allow the court to interpret it with some certainty (see Oh v Robinson, 2011 SKQB 200, [2011] 9 WWR 538; aff’d 2012 SKCA 27, [2012] 5 WWR 214; Canada Permanent Trust v Bowman, 1962 CanLII 81 (SCC), [1962] SCR 711; Bennett v Gray / Bennett v Toronto General Trusts Corporation, 1958 CanLII 49 (SCC), [1958] SCR 392; Jensen Estate). As stated by Bayda J.A. (as he then was) in Haidl v Sacher (1979), 1979 CanLII 2289 (SK CA), 106 DLR (3d) 360 at 368 (Sask CA), “[a]fter all, ascertaining the testator’s true intention is the real and only purpose of the whole exercise.”

In Thorne v Thorne, 2020 SKQB 341 (CanLII), the applicant applied for a declaration under s. 37 of The Wills Act that a document signed by Richard Bruce Thorne is fully effective as though it had been properly executed as the will of Mr. Thorne. The evidence before the court was that Mr. Thorne signed the document in the presence of two witnesses but only one of those witnesses, Robert Ficklin, signed the document to indicate that he witnessed Mr. Thorne’s signature. Currie J. set out the inquiry under s. 37 as follows:

[10] In short, the document looks and reads like a will. Thus, the applicant argues, the document – signed by Mr. Thorne and witnessed by two witnesses (although signed by only one of those witnesses) – embodies the testamentary intentions of Mr. Thorne. That being the case, she says, the court should make the s. 37 declaration. If the respondents wish to pursue their allegation of a lack of testamentary capacity, she adds, they may apply for an order requiring her to prove the will in solemn form.

[11] The essence of this approach to the s. 37 determination is to take the document at face value. At face value, as the applicant says, the document has every appearance of embodying Mr. Thorne’s testamentary intentions.

[12] Section 37 requires more than an examination of the document on its face, though. The section requires the court to be satisfied not only that the form of the document (subject to a correctable defect) is the form of a final testamentary disposition. The section also requires the court to be satisfied that the document actually sets out the testator’s final testamentary disposition.

Currie J. dismissed the application under s. 37 of The Wills Act for the following reasons:

[17] It is, of course, the right of a testator to change his mind and to name whomever he wishes as beneficiaries of his estate. He may do so for any reason, or for no particular reason, provided those are his intentions and provided he has testamentary capacity at the time.

[18] The applicant has provided good reasons for concluding that, when he signed the document, Mr. Thorne had testamentary capacity and that he intended to make the applicant his sole beneficiary. In particular I note the evidence of strained relations between Mr. Thorne and the respondents, and the evidence of his ongoing good relations with the applicant.

[19] There remains, though, the evidence supporting the opposite conclusion. The respondents have provided good reasons for doubting that Mr. Thorne had testamentary capacity when he signed the document. In particular I note his long-term plan to benefit all three of his children, the unexplained circumstances surrounding the preparation and signing of the document, and Mr. Thorne’s own expressed uncertainty as to what he had signed.

[20] Possibly it is simply a matter that Mr. Thorne had had enough of the respondents and had decided to leave everything to the applicant. There are, however, too many outstanding questions surrounding Mr. Thorne’s signing of the document for me to be satisfied with respect to s. 37(a). That is, while I recognize the possibility that Mr. Thorne had testamentary capacity, so that the document embodies his testamentary intentions, I am not satisfied that it is the case. The question cannot be determined only on the evidence that is before me.

[21] Therefore, the application under s. 37 is dismissed. With reference to Rule 16-19(7) of The Queen’s Bench Rules, in order to keep this matter moving towards a resolution I direct a trial of the issue of whether the document is Mr. Thorne’s will. The applicant, as proponent of the will, bears the onus of proving the will.

In Nicklen Estate, 2021 SKQB 208 (CanLII), the deceased had a will that met all the formal requirements. However, the will was accompanied by another document – a NAPA Auto Parts receipt – on the back of which the deceased made some handwritten notes with respect to certain property. The executor argued that the handwritten document was a codicil. The court set out the legal principles in determining testamentary intention as follows:

[43] The central question in this case, in my view, is whether or not the Document expresses Edward’s testamentary intention. [...]

[44] As set out by Ottenbreit J.A. in Kube v Kube, 2015 SKCA 49 at paras 19‑21, 457 Sask R 265 [Kube], a s. 37 inquiry is twofold. First, the court must conclude that the document is testamentary in nature. Second, the document in question must embody the deceased’s fixed intention to deal with his or her property in a particular way. The burden of meeting both of these prerequisites lies upon the shoulders of the proponents of the document as a testamentary document.

[45] For the purposes of a s. 37 inquiry, the court is not restricted to considering the document itself. A s. 37 declaration is not merely a fascial exercise. [...]

[46] Section 37 does not empower the court to inject a testamentary intention into a document. All that s. 37 allows the court to do is to declare a document to be testamentary notwithstanding the fact that the document does not wholly comply with the Act. In this regard, Gerein J. stated as follows at paragraph 6 of his decision in Balfour Estate (Re) (1990), 1990 CanLII 7460 (SK QB), 85 Sask R 183 (Sask QB):

[6] Yet it must be kept in mind that the section’s purpose is to overcome noncompliance with formal requirements. It does not empower the court to render a document testamentary in nature when it is otherwise not so. In the instant case the subject document does not manifest a true testamentary intention and therefore does not meet the threshold requirement of the section.

[47] The second prerequisite for a s. 37 declaration is that the document in question must contain more than a fleeting expression of how the individual wishes his or her property to be disposed of after death. The court must ask whether the document represents a fixed and final expression of intention in relation to the disposition of property. At paragraph 21 of his decision in Kube, Ottenbreit J.A. quoted from the Manitoba Court of Appeal in George v Daily (1997), 1997 CanLII 17825 (MB CA), 143 DLR (4th) 273 (Man CA):

[21] The second aspect of the question is whether the document represents a deceased’s final wishes as stated in George v Daily (1997), 1997 CanLII 17825 (MB CA), 143 DLR (4th) 273 (Man CA) at 291: The term “testamentary intention” means much more than a person’s expression of how he would like his/her property to be disposed of after death. The essential quality of the term is that there must be a deliberate or fixed and final expression of intention as to the disposal of his/her property on death: Re Gray; Molinary v. Winfrey, 1960 CanLII 81 (SCC), [1961] S.C.R. 91; and Canada Permanent Trust Co. v. Bowman, 1962 CanLII 81 (SCC), [1962] S.C.R. 711.

[48] On a s. 37 inquiry, the court must place substance over form. A document that looks like a will may not be a testamentary document. A document that does not bear the trappings of a will may nonetheless be testamentary in nature. The central focus is the true intention of the testator. [...]

The Court found that the document was not testamentary as follows:

[49] What then of the Document in this case? Is it testamentary in nature and does it represent Edward’s fixed intention to deal with his property in a particular way? The answer, I find, is no. In reaching that conclusion, I weighed the following extrinsic evidence.

[50] The Document was a piece of scrap paper when Edward’s habit was to be more meticulous. His typical practice was to write on lined paper, and he traditionally had a pad of paper readily at hand. Further, Edward printed his name on the Document and did not affix his cursive signature. Although this does not preclude the finding that he “signed” the Document, it does constitute extrinsic evidence relevant to the question of whether or not the Document is testamentary in nature. For him to simply print his name with notes written on a scrap piece of paper was out of character for him.

[51] Jeanette’s note, which was written on February 6, 2020, refers to the Document as “changes that [Edward] wished to make to his Will”. This statement is prospective in nature. It speaks of a future intention. Edward died just ten days later.

[52] Edward’s notations are unclear. He indicated in the Document that he “gave” NE 01 to William, which speaks to the past, but he also indicated that he “give[s]” $20,000 a little each year to Abe and Beverly, which speaks to the future. He referred to a piece of equipment that he had already sold but noted on the Document that he was still owed money for that piece of equipment. In my view, the Document was both prospective and retrospective and does not reflect a fixed testamentary intention.

[53] According to Jeanette, Edward told her that he intended to change his Will to remove Beverly and give the land to William. Similarly, William suggests that he expected to receive the NE 01 from Edward. Even if Edward told Jeanette that he intended to change his Will and leave the NE 01 to William, the intention to do something does not necessarily constitute a fixed testamentary intention to do so.

[54] Edward utilized professional services for his legal and accounting needs. Jeanette’s evidence was that Edward was going to ask Ronald Saretzky, a lawyer with TSN Law, to come to the farm because Edward was too sick to go to the law office to deal with his Will. However, Mr. Saretzky was sick and not available. They did not call another lawyer because she and Edward thought that he had longer to live and that he could wait for Mr. Saretzky to return to work.

[55] Similarly, Darcy Neufeld recalls that Edward called TSN Law in early 2020 to discuss changes to his Will but that Edward did not meet with Mr. Saretzky or any other lawyer from TSN Law at that time or thereafter.

[56] The fact that Edward traditionally used the services of a lawyer, in conjunction with the fact that he attempted to contact a lawyer in relation to changes to his Will very shortly before he died, supports the conclusion that he intended to change his Will but did not ultimately do so before he died.

In Schreiber Estate (Re), 2015 SKQB 96 (CanLII), Layh J. considered an application pursuant to s. 37 of The Wills Act for an order that a "fill-in-the-blank" will was valid and capable of being probated. The deceased, Eugene F. Schreiber, did not satisfy the requirements of a holograph will, one entirely in his handwriting and signed. Nor did he satisfy the requirements of a formal will, one requiring his signature and that of two witnesses. Layh J. found that the document was testamentary in nature, therefore the formal deficiencies could be rectified by applying s. 37 of The Wills Act:

I am satisfied of the following conclusions. The document presented for probate is testamentary in nature and clearly shows Mr. Schreiber’s testamentary intentions. The document does not comply with the strict formalities of the Act. I need not extrapolate, speculate or fill in any blanks in the document to augment a testamentary intention or to complete the distribution of Mr. Schreiber’s estate. Finally, based on the affidavit of Mr. Arneson, I am satisfied that the document was filled in and signed by the late Mr. Schreiber.

[16] Mr. Schreiber handwrote specific dispositions as well as residuary dispositions. The gifts dispose of the entire estate. He appointed an executor. Mr. Schreiber made certain changes to the original document, evidence that he was engaged in the process of altering the standard clauses and tailoring the document to meet his testamentary wishes. He crossed off certain words and struck out large blank parts of the document so that it could not be further altered. He initialled two spots where he changed the pre-printed date and signed the attestation clause.

[17] The threshold requirement that the document express “testamentary intent” is clear. The form and content of the document (the pre-typed part as well as the handwritten parts) are entirely consistent with a will, except for the absence of witness signatures. The title of the document, alone, reveals its intention. The first clause revokes all prior wills and testamentary dispositions.

[18] I have no question that this document is testamentary in nature. The only error (the lack of witness signatures) relates to the execution of the document and this deficiency can be rectified by applying s. 37 of the Act.

[19] I therefore order that this document be fully effective as if it had been executed according to the Act and I order Letters Probate to issue.

In Giesbrecht v Giesbrecht, 2018 SKQB 249 (CanLII), Brown J. considered an application pursuant to s. 37 of The Wills Act for an order that a "fill-in-the-blank" will was valid and capable of being probated. The document was signed by the deceased and one witness. No affidavit of the witness accompanied the document. Brown J. found that the document represented the deceased's testamentary intentions:

[1] Heather Gail Giesbrecht [Heather] passed away on March 10, 2018 after unfortunately suffering injuries in a car accident which put her into a coma from which she never awoke.

[2] This is an application pursuant to s. 37 of The Wills Act, 1996, SS 1996, c W-14.1 [Act] for an order that a standard form "fill-in-the blank" will likely purchased at a stationary store by Heather and completed by her in 1995 is valid and capable of being probated.

[3] When Heather filled out the form will in 1995 she appears to have used her own handwriting and signed it. Another signature also appears at the end of it, this being the signature of one Bernice M. Simmie.

[..]

[5] The document submitted by the applicant as containing Heather’s testamentary intentions is partly typewritten with handwritten insertions. These are purportedly made by Heather. Given there is only one signature other than Heather’s on the document, it is th

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