Yesterday I introduced the issue of substantial compliance with the formal requirements of making a valid will, and the case of Robitaille v. Robitaille Estate, 2011 NSSC 203 (CanLII).
After considering other cases where substantial compliance was an issue, the court went on to accept the validity of the will, even though it was not properly witnessed.
The court initially raised the question of whether the testator had testamentary capacity. The court observed that where a will complies with the formalities of execution, there is a rebuttable presumption of capacity. The court went on to hold that this same rebuttable presumption should apply to a writing that a party seeks to enforce as valid under the relevant “substantial compliance” legislation.
Moving on to the main issue, the court succinctly stated the test to be met: “I must be satisfied that the testator’s revised will represents a deliberate or fixed and final expression of her intention to dispose of her property on death.”
The court held that the writing met this test. The writing was deemed to be valid and fully effective as a will.
The court stated that the addition of the “protective trust” with respect to the bequest to one of the beneficiaries may have raised a red flag. However, the provision was similar to one that applied to another beneficiary, and furthermore, the beneficiary against which the provision applied did not contest the validity.
The case contains very little discussion as to the exact nature of the non-compliance. In the recitation of the facts, the court notes that the revised will was not witnessed at the time of the testator’s signature. Instead, the witnesses added their signatures after the fact. It may be that the fact that there were in fact witnesses to the signing of the will, and a certain level of formality, added to the comfort level of the court in making the determination.
Thank you for reading,
Paul E. Trudelle – Click here for more information on Paul Trudelle.