Canada: Needing Extrinsic Evidence To Validate A Will And The Risks Of Failing To Follow The Formalities

In McNeill Estate (Re), 2016 ABQB 645, the court used extrinsic evidence–evidence outside the Will itself–to validate a Will even though only a photocopy was available and it was witnessed by only one person, not two. The Will also included typos and the wrong date.

The testatrix and her mother executed simple one-page Wills at the kitchen table one evening in 2011. The testatrix's Will was typed on a laptop computer and named her mother as executor and sole beneficiary. At the time of execution, the testatrix had been living with her mother for three years after her divorce. The testatrix would continue to reside with her mother until her death two years later. The mother presented evidence that the testatrix's health problems caused her to rely on her mother for support. 

Upon the testatrix's sudden death, a dispute arose between the mother and the ex-husband as to the validity of the 2011 Will. The ex-husband produced a Will from 2006, which was prepared by the testatrix's lawyer, and left the testatrix's estate to the ex-husband. The ex-husband also produced email correspondence from the testatrix that her relationship with her mother was strained in the years leading up to her death. Further, the ex-husband led evidence that the testatrix was a careful, smart woman who would not have executed such a simple Will which contained typographical errors and the wrong date.

The court heard from numerous witnesses, including friends and family, and reviewed documents regarding the preparation of the 2011 Will. The court heard evidence regarding an affair that the testatrix had with one of the witnesses and how her mother had the testatrix's laptop computer erased prior to providing it to her lawyers to try to avoid the facts of the affair and her other personal information coming to light. The court found that this intentional destruction of evidence amounted to spoliation, entitling the court to presume that the mother destroyed the computer evidence because it would not help her case, unless she could show otherwise.

The mother was able to show otherwise. Despite the destruction of the computer evidence and the conflicting evidence as to the testatrix's intention, the court was satisfied that the 2011 Will was valid. Overall, the court was satisfied by the mother's version of events, which was substantiated by the evidence of other parties and a contemporaneous diary entry regarding the 2011 Will. The court found that it made sense for the testatrix to make a new Will after her divorce and to name her mother as beneficiary. Further, the court found the suggestion that the mother and witnesses had fabricated the 2011 Will in the emotionally traumatic week following the testatrix's death to be implausible.

This case illustrates some difficulties that can occur when the formalities of Wills legislation are not followed. Friends and family members may be called to testify and personal details of the testatrix's life may be reviewed in a public hearing. However, it also illustrates that, by calling the appropriate evidence at trial, formal defects in a Will can be overcome.

Blair Yorke-Slader, Q.C., of Bennett Jones, acted at trial for the successful mother.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Authors
Codie L. Chisholm
 
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