This week on Hull on Estates, Natalia Angelini and Lisa Haseley discuss drafting and litigating no-contest clauses in Wills.
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Sometimes, timing is everything.
In Re Barbeau, the deceased died on September 17, 2011 at 5:40 am. He died leaving a Will that left the residue of his estate to his spouse if she survived him for a period of thirty days. If she did not survive him for thirty days, his estate would pass to one of his spouse’s daughters. Under the spouse’s Will, her estate passed to her five children.
As fate would have it, the deceased’s spouse died on October 17, 2011 at 4:45 pm.
The question the court had to grapple with was whether the deceased’s estate passed to his spouse, and therefore her five children under her Will, or to the one daugther, under his Will.
In the decision, the court set out the two possible interpretations: either the thirty days are calculated as thirty 24-hour periods commencing on September 17, 2011 at 5:40 am, or applying the analogy of the Rules of Civil Procedure, the thirty day period commenced on the day after the date of death. If the second interpretation prevailed, what was the effect of the spouse not being alive for the entire thirtieth day?
The court noted the purpose of such survivorship clauses: to prevent the application of s. 55 of the Succession Law Reform Act (survivorship), and to avoid the imposition of two sets of administration taxes and costs in the event that both spouses died at the same time or within a short period of one another.
The court also noted that the selection of a thirty day period was likely arbitrary. Further, the court noted that interpreting the Will, the court was to strive to determine the intention of the testator.
The court found that there was an inconsistency in the Will, in that it provided different outcomes if the first interpretation was applied. That is, the spouse would have survived for thirty days, but also have died within the thirtieth day. This, the court found, was not intended.
Thus, the court concluded that if the first day was excluded, applying the Rules of Civil Procedure, then the inconsistency was avoided. The spouse would have to survive for thiry full days: that is, survive until some time on the thirty-first day. As the spouse did not survive for thirty full days, and died within the thirty day period, the residue of the estate passed to the one daughter.
The formal requirements for execution of a will, or any testamentary instrument in Ontario, are governed by Part I of the Succession Law Reform Act ("SLRA"). The definition of "will" in s. 1 of the SLRA includes a testament, codicil, will, or other testamentary disposition. The most critical form requirements are that the will must be in writing, signed by the testator and two witnesses. Other requirements exist, of course.
Many jurisdictions contain dispensation clauses relaxing the formal compliance requirements, if the court is satisfied that a document or any writing on a document embodies the testamentary intentions of a deceased. For example, s. 23 of Manitoba’s Wills Act or California’s Probate Section 6110-6113. Not so with Ontario, except for holograph wills and for members of the Canadian Forces on active service. While there is wiggle room in terms of the interpretation of the execution requirements, for instance what constitutes "in writing" or "signed by the testator", if the formal requirements are not met and no specific exemption applies, there is no saving provision based on testator’s intention, and therefore no testamentary instrument.
This can have harsh consequences, by invalidating otherwise perfectly good wills on narrow technical grounds. On the other hand, the SLRA provides time-tested, black-letter legal clarity. Time tested, because the formal requirements descend from the Wills Act, 1837.
Have a great weekend,
Christopher M.B. Graham – Click here for more information on Chris Graham.