Back to Basics: Is This Testamentary?

September 27, 2016 Doreen So Continuing Legal Education, Estate & Trust, Estate Planning, Wills Tags: , , , , , , , 0 Comments

Pursuant to section 2 of Part I of the Succession Law Reform Act,

“A person may by will devise, bequeath or dispose of all property (whether acquired before or after making his or her will) to which at the time of his or her death he or she is entitled either at law or in equity…”

The interpretation of the term “will” is defined under section 1 of the Act to include,

Testamentary documents, what constitutes a valid will?
“A person may by will devise, bequeath or dispose of all property (whether acquired before or after making his or her will) to which at the time of his or her death he or she is entitled either at law or in equity…”

“(a) a testament,

(b) a codicil,

(c) an appointment by will or by writing in the nature of a will in exercise of a power, and

(d) any other testamentary disposition.”

The question of what constitutes a will was a topic of the recent Law Society of Upper Canada Practice Gems: Probate Essentials 2016 program on September 20, 2016 (click here if you are interested in a copy of the program’s agenda).

As an example from the program materials, Canada Permanent Trust Co v Bowman, [1962] SCR 711 was a case in which the Supreme Court of Canada found a handwritten document in a cardboard box of the deceased’s home to be valid where, “read as a whole”, the document showed the implicit intention of a testator who wished for certain dispositions of her property following her death.  The document in question listed certain people with dollar amounts or items beside each name, such as, “Ena $1,000.00 in National Trust” and “Laura—fur coat”.

An even more famous example may be found in Ian Hull’s prior blog on the testamentary disposition that was carved on the bumper of a tractor by an unfortunate farmer while he was trapped under its weight.  The farmer did not survive and following engraving can be discerned from the bumper, “In case I die in this mess, I leave all to the wife. Cecil Geo Harris.”

Thanks for reading!

Doreen So

 

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