Canada: The Importance Of Signing

Last Updated: January 29 2018
Article by Andrea MacLean

Alberta's Wills and Succession Act, SA 2010, c W-12.2 ("WSA") gives courts the power to order that a will is valid, even where it does not comply with formal requirements required by the Act. But how far can a court go?
The Alberta Court of Queen's Bench found, on December 6, 2017, that power will not allow a court to add a signature to an unsigned will where the testator had not had the opportunity to review the will and had not been given the chance to sign it.

Facts

In the decision of Edmunds Estate, 2017 ABQB 754, a paralegal prepared a will according to the instructions of the testator, Ms. Edmunds. However, Ms. Edmunds never had the opportunity to review the final version of the unsigned will; she was hospitalized and then passed away unexpectedly before she had a chance to execute it. The beneficiary of the unsigned will asked the Court to validate it despite the absence of Ms. Edmunds' signature.

Law

Section 39 of the WSA allows the Court to add or subtract from a will to make it accord with a testator's evidenced intentions. However, in order to do so, the Court must be satisfied, "on clear and convincing evidence", that the will does not reflect the testator's intentions because of an accidental slip or omission or if the person preparing the will failed to give effect to the testator's instructions.

When it comes to adding a signature, the Court is only permitted to add the testator's signature if the Court is satisfied on clear and convincing evidence that the testator:

  1. intended to sign the document but omitted to do so by pure mistake or inadvertence, and
  2. intended to give effect to the writing in the document as the testator's will.

Analysis

In order for a court to rectify the will, there must first be an accidental omission, or a situation where the person who prepared the will misunderstood, or failed to give effect to, the testator's instructions.

The death of a testator, as in Edmunds Estate, is not an accidental omission. The Court in that case found, ['Ms. Edmunds'] death cannot be responsibly characterized as an 'accident' that resulted in the omission of her signature on the unsigned will." The Court did find, however, that if she attended a meeting to execute the will but failed to do so, there may have been a basis for a different conclusion.

The Court also found that an unsigned will does not represent a failure on the part of the person preparing the will to give effect to a testator's instructions. The instructions, the Court found, were never given by Ms. Edmunds as the execution meeting never occurred and therefore this section did not apply.

The Court also determined that a signature can only be added if there was clear and convincing evidence it was omitted by "pure mistake or inadvertence." The Court relied on other cases which showed that a testator dying does not satisfy the element of omission by "pure mistake or inadvertence." The Court found a pure mistake implies that the testator thinks she is doing one thing but, in fact, does something else (ex: executing a power of attorney and mistaking it for a will). Inadvertence arises from accidental oversight. Neither were present in this case.

In Edmunds Estate, there was no clear and convincing evidence of intention to sign the document and to give effect to the writing in the document as the testator's will. Though, if Ms. Edmunds had attended upon execution and attempted to sign the will, the Court indicated it may have arrived at a different conclusion.

Conclusion

It is difficult to imagine a scenario in which a Court will ever validate an unsigned will where the testator had not had the opportunity to review and execute it. It is, therefore, critically important for an individual to follow through with completion of the will to ensure that his or her intentions will be carried out.

Where a testator dies before reviewing and signing his or her will, it will be challenging to show clear and convincing evidence that he or she intended to sign the unsigned will. The Court recognized that wills are frequently revised, sometimes dramatically, at the very meeting convened to deal with execution. Arguing that a document never reviewed by the testator perfectly reflected his or her wishes is likely going to be unsuccessful.

Further, the death of a testator does not constitute evidence that the failure to sign arose through pure mistake or inadvertence. Death, even accidental death, does not meet the definition of "pure mistake" or "accidental oversight."

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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Andrea MacLean
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