The requirements of formal validity have, on occasion, bedeviled the Courts.  Presented with overwhelming evidence of testamentary intent, the Court’s hands may nonetheless be tied by uncompromising legislative requirements.  

In Nova Scotia, the legislature proclaimed (on August 18, 2008) an amendment finally permitting the making of Holograph Wills.  Moreover, the amendment also permits Wills to be admitted to probate that do not meet the requirements of formal validity if the Court is satisfied that a flawed document nonetheless reflects the testamentary intentions of the testator. 

Lawyer’s Weekly just reported on MacDonald v. MacDonald, a decision out of the Nova Scotia Supreme Court.  In this case, the testator made a Will entirely in her own handwriting but left it unsigned.  It was, however, witnessed and the two witnesses gave evidence that the testator had attested to it as her last Will in their presence.  The testamentary document before the Court in MacDonald therefore fell within both branches of the amendment to the provincial statute.  However, the Will was not admitted to probate because it was made prior to the proclamation of the amendment to the Wills Act.  Unlike Ontario’s Succession Law Reform Act which provided for retroactivity to 1978, the Nova Scotia amendment did not have a similar clause.

David Morgan Smith

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