Into Re Woods: Formal Validity of Wills
The issue of how strictly a testator must comply with the formal rules for validly executing a will is one that has encouraged legislative change across the country in recent decades. If the standard is too high, the result will be the frustration of the testamentary intentions of people who died thinking that they had valid wills when in fact they were invalid. If the standard is too low, uncertainty as to what qualifies as a valid will and what doesn’t may lead to an increase in litigation.
Ontario maintains a strict compliance regime, requiring that the statutory requirements for valid execution of a will are carefully adhered to and denying courts the authority to validate a document that fails to meet them. Most other provinces and territories have given their courts at least some authority to cure deficiencies in the execution of a will, provided that the document is found to represent the testamentary intentions of the deceased.
While the debate continues in Ontario, a recent Alberta case may serve to assuage some of the concern that relaxing the strict requirements for execution will lead to the opening of the floodgates.
In Re Woods Estate, the Court of Queen’s Bench considered an application under Alberta’s Wills and Succession Act for a declaration that certain documents were valid as a will. The deceased, having been advised that she had approximately a year and a half to live, asked one of her sisters to help her retain a lawyer to prepare a will. In anticipation of the meeting, she took some notes on a pad of paper. A lawyer later attended at her home and completed a questionnaire used by her firm to take information for a will. The questionnaire included information about the testator’s choice of executor, the assets, her wishes with respect to her remains, and how she wanted the residue of her estate to be divided. The lawyer was going to contact the intended executor (an institution) to confirm their willingness to act, and arranged to return several days later to have the will executed. Unfortunately, the deceased died early the following morning. The Court had to consider whether to grant probate of the deceased’s notes and/or the questionnaire as representing her last will.
Turning to Alberta’s statute, the Court considered section 14 of the Act which provides that to be valid, a will must be in writing and “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”. There are further sections (15, 16, and 17) that add requirements for a formal will, holograph will, or a military will. Section 37 of Alberta’s Act allows the Court to relieve a will from the strict requirements under sections 15, 16, and 17, but not 14. Accordingly, because the notes and the questionnaire were not signed by the deceased with the intention that they have effect as her will, the Court was unable to apply section 37. The Court also considered whether the Act‘s rectification provisions could be used and held that they could not because they required that the omission of a signature be due to pure mistake or inadvertence. Here, it was never intended by the deceased that the notes or questionnaire would become a will and so it could not be said that the failure to sign was inadvertent.
Sadly, the presiding judge noted that she was satisfied that the questionnaire accurately reflected the testamentary intentions of the deceased and that she had no doubt the testator would have executed a will on those terms, but that Alberta statute nevertheless did not authorize the Court to validate the will.
As noted in the case, Alberta’s statute takes a “middle position” between strict compliance jurisdictions like Ontario and substantial compliance jurisdictions, where the Court has broader powers to grant probate to a document that is found to represent the testamentary intentions of the deceased notwithstanding the lack of a signature.
It seems that even in provinces where there has been some relaxation of the formal requirements for the valid execution of a will, there may still be cases where a document that is found to represent the testamentary intentions of the deceased will not be admitted to probate. Alberta’s experience demonstrates that there may be a range of legislative solutions to the formal validity issue, each with its own advantages and disadvantages.
Whether Ontario will move away from strict compliance in the future remains to be seen.