If a testator executes a will and multiple codicils prior to their death, and also writes out notes regarding their testamentary wishes, it may be unclear which documents ought to be submitted when applying for a certificate of appointment of estate trustee. The Manitoba Court of Appeal reminds us in Henderson Estate (Re), 2024 MBCA 95 that any document which has been executed in compliance with the statutory formalities applicable to wills ought to be included in the application, so long as it has not been revoked.
In Henderson, the testator and his wife made mirror wills which named their two daughters as alternate executors for both of their estates. After one of their daughters died, a number of codicils were executed in order to change the alternate executors named in the testator’s will, including:
- The January 2010 codicil: This instrument was handwritten by the testator’s wife, and was intended to be a joint codicil. It appointed the spouses’ son and daughter to act as alternate executors for their estates. The codicil was signed by both the testator and his wife, but witnessed by only one person.
- The July 2011 codicil: This codicil was drafted by a lawyer and executed in compliance with the statutory formalities applicable to wills. Both the testator and his wife executed new codicils which formally appointed their son and daughter as alternate executors in their wills. However, the codicils also contained a drafting error, indicating that the beneficiaries in one of the clauses of their wills were to be changed.
- The December 2011 codicil: This codicil, created after the testator’s wife had passed away, changed the testator’s executors by replacing his son with his brother. The testator made this change since he was having difficulties with his son and did not believe that he would work well with the other named executor. The December 2011 codicil, drafted by the same lawyer as before, was properly executed but had the same drafting error as the July 2011 codicil.
In August of 2011, prior to the wife’s death, the testator and his wife also signed another handwritten note, indicating that regardless of which spouse survived the other, “there will not be any removal or add on of any kind to the Original Will.”
Following the testator’s death, his daughter applied for probate. The son brought an application seeking a variety of relief, including the removal of his sister as executor. He argued that the December 2011 codicil was invalid due to counsel’s drafting errors, and that he should be appointed as executor in keeping with the January 2010 codicil. In an unreported decision, the original application judge dismissed the son’s application and held that the December 2011 codicil could be rectified to remove counsel’s drafting errors and admitted to probate.
The son appealed, arguing that the December 2011 codicil could not be admitted to probate due to the drafting errors combined with some evidence indicating some incapacity in the testator, even though his counsel acknowledged that the requisite capacity threshold is lower when executing a codicil which simply changes the executors of an estate, rather than the beneficiaries. He also argued that counsel should have reminded the testator of the August 2011 note and the January 2010 codicil in December 2011, before the final codicil was executed. Despite these arguments, the Manitoba Court of Appeal dismissed the appeal, affirming that rectification was available to remove counsel’s drafting error.
In an interesting twist though, the Court of Appeal also rectified the July 2011 codicil, even though neither party sought this relief, and held that both the July 2011 codicil and the December 2011 codicil should be admitted to probate, since both were executed in compliance with Manitoba’s Wills Act, and the December 2011 codicil did not revoke the July 2011 codicil. The Court of Appeal referred to the court’s responsibility to admit all validly executed testamentary documents to probate, “stemming from its function as [a] probate court.” Justice Spivak went on to note on behalf of the court:
“Even though the July 2011 codicil, which appointed Yogi as co-executor, is superseded by the December 2011 codicil, which removed him, the July 2011 codicil is nonetheless a proper testamentary document. It is a document of testamentary intention by a person with testamentary capacity that was validly executed in accordance with the formalities required under The Wills Act. Moreover, the application judge should have noted the words of the July 2011 codicil and the December 2011 codicil that were to be deleted upon their admission to probate.”
In comparison, it was unnecessary to admit the January 2010 codicil to probate, since it was not properly executed. It appears that a non-compliant instrument should only be admitted for probate if the applicant is actively seeking to validate that instrument.
The Court of Appeal’s decision in this case serves as a helpful reminder that, so long as a properly executed testamentary instrument has not been revoked, it ought to be included in an application for probate, even if it has been superseded. After all, the role of a probate court is to determine what documents constitute a deceased person’s last will and testament. When applying this rule in Ontario, however, it is important to be mindful of the exception for secondary wills.
I hope you enjoy the rest of your day,
Suzana.