Tag: substantial compliance

11 Dec

When can Alberta courts validate unsigned wills?

Nick Esterbauer Wills Tags: , , , , , 0 Comments

Amendments to Alberta’s succession legislation took effect in 2012 to expand the authority of the courts to order that a will is valid, notwithstanding its failure to comply with the formal requirements otherwise imposed under the Wills and Succession Act, SA 2010, c W-12.2 (the “Act”).  Specifically, section 37 of the Act reads as follows:

Court may validate non-compliant will

37 The Court may, on application, order that a writing is valid as a will or a revocation of a will, despite that the writing was not made in accordance with section 15, 16 or 17, if the Court is satisfied on clear and convincing evidence that the writing sets out the testamentary intentions of the testator and was intended by the testator to be his or her will or a revocation of his or her will.

Section 39(2) of the Act addresses the issue of the rectification of a will that has not been signed.  If a court is convinced by “clear and compelling evidence” that the will was not signed as a result of pure mistake or inadvertence and the testator intended to give effect to the document as his or her last will, the court may add a signature to rectify the will.

The recent decision of Edmunds Estate, 2017 ABQB 754, provides clarification regarding the limits of the court’s ability to validate an unsigned will.  In that case, a paralegal had received instructions from the deceased and prepared a will that reflected her instructions, but the new will was never signed by the deceased before she died.  Justice C.M. Jones of the Alberta Court of Queen’s Bench found that the amended Act did not provide the Court with the authority to validate an unsigned will in the absence of clear and convincing evidence that the deceased had intended to sign the document and/or that she had failed to do so by inadvertence or mistake.  The deceased could not have been said to have failed to sign the document by mistake, as she died before making arrangements to execute the will, and Justice Jones found that the evidence that the draft will was intended to be her last valid will fell short of what was required by the legislation.

In Ontario, the doctrine of strict compliance applies.  Unless its defects can be cured by way of interpretation or rectification (the scope of which remedy remains limited), a will that does not comply with the formal requirements of the Succession Law Reform Act, RSO 1990, c S.26, will not be treated as valid and cannot be admitted to probate.

With several other provinces recently adding what Justice Jones refers to as “dispensing clauses” into their respective succession legislation, it will be interesting to see whether Ontario follows suit, opening the door to substantial compliance, in time.

Thank you for reading.

Nick Esterbauer

Other blog entries and podcasts that may be of interest:

·        Considering Wills Where No Strict Compliance with Execution Requirements: Part 1

·        Considering Wills Where No Strict Compliance with Execution Requirements: Part 2

·        More on Rectification

01 Oct

Death on Mars

Joshua Eisen In the News, Wills Tags: , , , , , 0 Comments

NASA revealed exciting news earlier this week when they announced the discovery of liquid water flowing on the surface of Mars.  The presence of water is an encouraging find.  It boosts the prospects of discovering life on our nearest neighbour, and it raises questions about whether the planet could someday host human visitors.

The goal of sending people to the Martian surface now seems more attainable than ever.  Talk of sending astronauts to Mars is likely to accelerate over the coming months.  With people travelling to and someday settling on the red planet, a whole host of legal issues are likely to arise about how people will live on Mars, and some day, how we will deal with death in space.

The problem of applying testamentary law in space is a novel one.  Perhaps the closest historical analog is the example of the explorers who set sail centuries ago in search of strange, new places across the seas.  One of the legal developments that arose was the exception for privileged wills.  Sailors at sea were allowed to make wills without them being subject to the same formal requirements that governed other wills.

Today, section 5 of Ontario’s Succession Law Reform Act addresses the formal validity of wills made by “a sailor when at sea or in the course of a voyage”.  The section provides for a relaxation of the usual requirements for a will to be formally valid, including the requirement for two witnesses in the case of an attested will and the requirement that the will be wholly in the handwriting of the testator in the case of a holograph will.  It provides that a sailor at sea can make a will by a writing, signed by the testator or by some other person in his or her presence and by his or her direction, without any other formalities.  The section also applies to members of the Canadian Forces on active service and members of any other naval, land or air force while on active service.

There are no cases testing whether this provision or analogous provisions in other jurisdictions (on Earth) would apply to relax the formal requirements for a will where it is made during a space flight or while residing on Mars.  It’s possible that astronauts in flight could be considered to be analogous to sailors at sea.  It’s also possible that NASA astronauts would be members of a military force on active service, and accordingly gain access to the use of privileged wills.

It seems that it will be still be some time before we will need to consider the problems associated with living on Mars, and hopefully much longer before issues associated with death on Mars need to be sorted out.  Perhaps need will spur new and unforeseen innovations in our legal system, just as naval exploration once did.

Mars is probably a forced heirship planet, anyway.

28 May

Into Re Woods: Formal Validity of Wills

Hull & Hull LLP Wills Tags: , , , , , 0 Comments

The issue of how strictly a testator must comply with the formal rules for validly executing a will is one that has encouraged legislative change across the country in recent decades.  If the standard is too high, the result will be the frustration of the testamentary intentions of people who died thinking that they had valid wills when in fact they were invalid.  If the standard is too low, uncertainty as to what qualifies as a valid will and what doesn’t may lead to an increase in litigation.

Ontario maintains a strict compliance regime, requiring that the statutory requirements for valid execution of a will are carefully adhered to and denying courts the authority to validate a document that fails to meet them.  Most other provinces and territories have given their courts at least some authority to cure deficiencies in the execution of a will, provided that the document is found to represent the testamentary intentions of the deceased.

While the debate continues in Ontario, a recent Alberta case may serve to assuage some of the concern that relaxing the strict requirements for execution will lead to the opening of the floodgates.

In Re Woods Estate, the Court of Queen’s Bench considered an application under Alberta’s Wills and Succession Act for a declaration that certain documents were valid as a will.  The deceased, having been advised that she had approximately a year and a half to live, asked one of her sisters to help her retain a lawyer to prepare a will.  In anticipation of the meeting, she took some notes on a pad of paper.  A lawyer later attended at her home and completed a questionnaire used by her firm to take information for a will.  The questionnaire included information about the testator’s choice of executor, the assets, her wishes with respect to her remains, and how she wanted the residue of her estate to be divided.  The lawyer was going to contact the intended executor (an institution) to confirm their willingness to act, and arranged to return several days later to have the will executed.  Unfortunately, the deceased died early the following morning.  The Court had to consider whether to grant probate of the deceased’s notes and/or the questionnaire as representing her last will.

Turning to Alberta’s statute, the Court considered section 14 of the Act which provides that to be valid, a will must be in writing and “contain a signature of the testator that makes it apparent on the face of the document that the testator intended, by signing, to give effect to the writing in the document as the testator’s will”.  There are further sections (15, 16, and 17) that add requirements for a formal will, holograph will, or a military will.  Section 37 of Alberta’s Act allows the Court to relieve a will from the strict requirements under sections 15, 16, and 17, but not 14.  Accordingly, because the notes and the questionnaire were not signed by the deceased with the intention that they have effect as her will, the Court was unable to apply section 37.  The Court also considered whether the Act‘s rectification provisions could be used and held that they could not because they required that the omission of a signature be due to pure mistake or inadvertence.  Here, it was never intended by the deceased that the notes or questionnaire would become a will and so it could not be said that the failure to sign was inadvertent.

Sadly, the presiding judge noted that she was satisfied that the questionnaire accurately reflected the testamentary intentions of the deceased and that she had no doubt the testator would have executed a will on those terms, but that Alberta statute nevertheless did not authorize the Court to validate the will.

As noted in the case, Alberta’s statute takes a “middle position” between strict compliance jurisdictions like Ontario and substantial compliance jurisdictions, where the Court has broader powers to grant probate to a document that is found to represent the testamentary intentions of the deceased notwithstanding the lack of a signature.

It seems that even in provinces where there has been some relaxation of the formal requirements for the valid execution of a will, there may still be cases where a document that is found to represent the testamentary intentions of the deceased will not be admitted to probate.  Alberta’s experience demonstrates that there may be a range of legislative solutions to the formal validity issue, each with its own advantages and disadvantages.

Whether Ontario will move away from strict compliance in the future remains to be seen.

Josh Eisen

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