Is The Will Valid?

Non Formal Wills May Be Valid, Maybe Not

A will-maker must comply with several requirements for a document to have a testamentary effect. However, the court has discretion to find a Will, or part of it, to be valid, despite failure to comply with a formality, if the deceased’s intentions were deliberate or fixed, and a final expression of intention. Where a document, read as a whole, amounts to nothing more than a preliminary Will, and the deceased had ample opportunity to finalize his or her intentions, that document may be found to be invalid.

Quinn Estate v Rydland, 2019 BCCA 91

In this case, the court reviewed the statutory formalities to be complied with in order for a will to be valid. In cases where a will-maker has taken real steps to make a Will but has fallen short of fulfilling all the necessary formalities, the court can refer to section 58 of the Wills, Estates and Succession Act, SBC 2009, c 13. This section gives the court discretion to not aside a document that reflects the deliberate and final intentions of a deceased will-maker on the basis of failure to comply with a formality.

Wills, Estates and Succession Act, SBC 2009, c 13
37 (1) To be valid, a will must be:
(a) in writing;
(b) signed at its end by the will-maker, or the signature at the end must be acknowledged by the will-maker as his or hers, in the presence of 2 or more witnesses present at the same time; and
(c) signed by 2 or more of the witnesses in the presence of the will-maker.

87 (1) In this section, “record” includes data that:
(a) is recorded or stored electronically;
(b) can be read by a person; and
(c) is capable of reproduction in a visible form.

(2) On application, the court may make an order under subsection (3) if the court determines that a record, document or writing or marking on a will or document represents:
(a) the testamentary intentions of a deceased person;

(b) the intention of a deceased person to revoke, alter or revive a will or testamentary disposition of the deceased person; or

(c) the intention of a deceased person to revoke, alter or revive a testamentary disposition contained in a document other than a will.

(3) Even though the making, revocation, alteration or revival of a will does not comply with this Act, the court may, as the circumstances require, order that a record or document or writing or marking on a will or document be fully effective as though it had been made:
(a) as the will or part of the will of the deceased person;
(b) as a revocation, alteration or revival of a will of the deceased person; or
(c) as the testamentary intention of the deceased person.

(4) If an alteration to a will makes a word or provision illegible and the court is satisfied that the alteration was not made in accordance with this Act, the court may reinstate the original word or provision if there is evidence to establish what the original word or provision was.

Bennett v Toronto General Trusts Corp, [1958] SCR 392

In January, 1949, the deceased, Mrs. Gray, had executed a Will in accordance with the applicable governing statute. Three and a half years later, she consulted her solicitor, Mr. Dysart, and expressed dissatisfaction with her Will. About a month later on September 27, 1952, Mrs. Gray sent Mr. Dysart a letter outlining the particulars of what she wished her new Will to contain. Between the date of the letter and May 1953, Mrs. Gray only met with Mr. Dysart on two occasions to discuss the matters of her new Will. After their meeting in May the matter of Mrs. Gray’s Will was never brought up again. Mrs. Gray died three years later on April 5, 1956,

At issue on this appeal was whether the letter dated September 27, 1952 constituted a valid holograph will or codicil. The court determined it was not for the following reasons at pages 396-397:

There is no controversy either in the reasons for judgment in the Courts below, or between the parties, that under the authorities, holographic paper is not testamentary unless it contains a deliberate or fixed and final expression of intention as to the disposal of property upon death, and that it is incumbent upon the party setting up the paper as testamentary to show, by the contents of the paper itself or by extrinsic evidence, that the paper is of that character and nature: Whyte et al v Pollok; Godman v Godman; Theakston v Marson.

Whether the letter of September 27, 1952, contains per se deliberate or fixed and final expression of intention must be determined by the phrases immediately preceding and following the intermediate part of the letter where the wishes of Mrs. Gray are expressed; for, read as a whole, the letter has one single subject-matter, indicated as follows by Mrs. Gray: “I Promised to let you know how I would like my will to be made out.”

In the opening and closing phrases of the letter, Mrs. Gray conveys to Mr. Dysart sentiments of unreserved trust, reliance and dependence. Born, as admittedly shown by extrinsic evidence, out of an intimate relationship of many years between Mr. Dysart, on the one hand, and Mr. and Mrs. Gray and their children, on the other, these sentiments were those accompanying the mind of Mrs. Gray when, after expressing them, she wrote: “I will try to outline

the way would like to leave the little have.” And having done so, she closed the letter by informing Mr. Dysart that she would be in Winnipeg in a few days and that she would call him.

I am unable to dismiss the view formed that, read as a whole and according to its ordinary and natural sense, this letter amounts to nothing more than what is preliminary to a will. While Mrs. Gray indicated to Mr. Dysart the legacies she then contemplated her will to contain, it is clear, in my view, that she did not want that letter to operate as a will. Indeed by her letter, she is committing to future consultation with Mr. Dysart both the finality of her decisions, if not of her deliberations, and that of the form in which they should eventually be expressed in a regular will, the preparation of which is entrusted to Mr. Dysart himself. If this interpretation properly attends the document, the letter has not per se, and cannot acquire without more, a testamentary nature, and the proposition stated in Godman v Godman, supra, at p. 271, “that a document which is in terms an instruction for a more formal document may be admitted to probate if it is clear that it contains a record of the deliberate and final expression of the testator’s wishes with regard to his property”, as well as the proposition stated in Mines v Foden, that “It is not necessary that the testator should intend to perform or be aware that he has performed testamentary act”, are of no application in the present case.

Estate Litigation Lawyer Angela Price-Stephens

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