Canadian courts have long strived to look beyond the presence of strict formalities in a will, and instead focus on whether, based on clear and convincing evidence, the document reflects the testamentary intention of the deceased.
In Alberta, courts have gone as far as to say that they owe a duty to the deceased, to "give effect, if possible, to their intentions"1. One potential reason for such increased flexibility could be the court's expanding recognition that Canada still faces a major access to justice issue. While many people may want to put their final wishes into writing, not very many have access to the necessary resources to do so formally, with the help of a lawyer.
The Alberta case, Meunier Estate2 dealt with such a scenario where the testator intended to make his wishes known prior to his passing but was only able to do so through a two-page handwritten document drafted over a couple of drinks with friends.
Robert Dennis Meunier ("Robert") passed away after a battle with cancer leaving behind many loved ones. After his passing, one of his brothers, Roland Meunier ("Roland") applied to the Court to become the Personal Representative of Robert's estate, alleging that Robert died intestate and thus the residue of his Estate should be divided equally between his four surviving siblings.
Robert's nieces, Kimberly, Kammy, and Carla Dhoedt, claimed that he did not die intestate, as a few months prior to his passing he signed a two-page document which specifically named them as beneficiaries.
The document came into existence six months before Robert's passing. Over some drinks and good conversation with his friends, Donna and Norman Henze, the topic of passing away without a will came up. During that visit, Robert decided to dictate a brief document to Ms. Henze in which he dealt with most of his estate. The primary asset of his estate, being his home, was to go to his nieces, Kimberly, Kammy, and Carla, as Robert had promised his late sister (their mother) that he would always take care of them after her passing.
It is important to note the document was handwritten by Ms. Henze who was also the only witness to sign it. Moreover, Robert only signed and dated the first page of the document. In an attempt to formalize the newly drafted will, Ms. Henze used her Commissioner of Oaths stamp and commissioned both pages. The document was kept in Ms. Henze's possession until Robert's passing.
Roland admitted to having heard of the will, but alleged that prior to his passing, Robert stated on multiple occasions that he was intoxicated when the document was drafted, and that the document should be found and destroyed. The Henzes gave the document to Roland after his brother's passing; however, he never did destroy it.
One of the main issues before the Alberta Court of King's Bench was whether the two-page document, handwritten and commissioned by an impartial third-party, and partially signed by the Testator, amounted to a valid will.
In its analysis, the Court clarified the requirements of a valid will under the Wills and Successions Act3:
Requirements of a valid will
14 To be valid, a will
(a) must be made in writing,
(b) must 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, and
(c) subject to any order made under section 37, must be made in accordance with section 15, 16, or 17.
15 A will may be made by a writing signed by the testator if
(a) the testator makes or acknowledges his or her signature in the presence of two witnesses who are both present at the same time, and
(b) each of the witnesses signs the will in the presence of the testator.
16 A will may be made by a writing that is wholly in the testator's own handwriting and signed by the testator without the presence or signature of a witness or any other formality.4
The Court emphasised that non-compliance with the formal requirements stated in the WSA does not automatically invalidate a will. Rather, the Court must determine the testator's intentions and try to give effect to them:
"Where the statutory requirements have not been met, an asserted testamentary document is not presumed to be invalid; rather, the Court then owes a duty to the deceased person "to give effect, if possible, to [their] intentions [...]"5
After doing so, the Court may still validate an otherwise non-compliant will, if it is satisfied on a balance of probabilities, that "the writing sets out the testamentary intentions of the testator and was intended by the testator to be his or her will"6.
Courts in Alberta have developed a list of guiding principles to assist in determining testamentary intention. This list is non-exhaustive and is intended to guide the inquiry rather than provide a strict checklist where all items must be checked off. A Court will review the evidence before it, and look for the following indicia:
- Whether the document contains a reference to being a will;
- Whether the document contains the "typical elements of a will", such as revoking former wills and testamentary dispositions, appointment of a personal representative as well as their powers and compensation, paying debts, distributing property, and funeral instructions;
- Whether the document states that the testator has knowledge of and approves the contents;
- Whether the document is signed by the testator;
- Whether this signature was witnessed;
- Whether the witness understood what the testator was trying to accomplish and believes that the testator intended the document as a will;
- Whether the witness had the mental capacity to be a witness;
- Whether the witness was disqualified as a witness;
- Whether the witness and testator initialed the pages of the document;
- Whether the witness and testator signed and initialed the document in each other's presence;
- The position taken by the witness on the naming of beneficiaries under the will;
- The length of time from the making of the will to the death of the testator;
- Whether any evidence points to the existence of any other will or testamentary disposition;
- Whether the will is comprehensive;
- Whether anything in the document reflects "any tentative or incomplete intention";
- Whether the testator suffered from any language, comprehension, or similar defects; and
- Whether, if only one witness signs the will, there is an explanation for the lack of another witness."7
The Court contended that the document in question was clearly non-compliant with the requirements of a formal will. However, there was sufficient evidence in this case that proved that the document contained Robert's testamentary intentions.
In applying the factors listed above, the Court noted that, while the document did not contain references of it being a will, it did contain some of the "typical elements" of one, such as dealing with the distribution of property and providing for funeral instructions.8
Although the document was only signed and witnessed by Ms. Henze, when two witness signatures were formally required, she did make the extra effort to commission both pages. This suggested to the Court that both her and Robert understood the finality of the document. Mr. Henze, while not a witness in writing, was also present at the time the document was drafted and could attest to Robert's wishes.9
Moreover, in reviewing the facts, the Court observed that if Robert truly did believe that the document was "a joke with no legal significance"10, as alleged by Roland, he would not have asked for it to be retrieved on numerous occasions. Roland too, never destroyed the document even after receiving it from the Henzes, and in distributing Robert's belongings, he did so in a similar manner as contemplated in the document.11 That too suggested to the Court that the document was viewed by everyone as a potentially valid will.
The Court concluded that the applicant nieces were successful in establishing on a balance of probabilities that the first page of the document contained Robert's testamentary intentions. It thus held that the first page of the document did constitute a valid will, despite lacking certain formalities.12 The second page, however, was determined to not amount to a valid will, as it was lacking Robert's signature, initials, and name, and it had very little in it to link it to the first page.13
The main takeaway from Meunier is that in instances of non-compliant wills, Courts in Alberta will look beyond the presence of formalities and seek to determine whether, based on extrinsic evidence, the documents embody the testamentary intentions of the deceased person. If a Court can ascertain with sufficient certainty that the testator intended for the document to be a will, the Court will uphold its self-imposed duty to give effect to the testator's intentions, and validate the will despite its shortcomings.
1. Meunier Estate, 2022 ABKB 83 at para 44 [Meunier Estate].
2. Meunier Estate.
3. Wills and Succession Act, SA 2010, c W-12.2 [WSA].
4. WSA, ss 14-16.
5. Meunier Estate at para 44.
6. Meunier Estate at para 40.
7. Meunier Estate at para 50.
8. Meunier Estate at para 63.
9. Meunier Estate at paras 64 and 65.
10. Meunier Estate at para 73.
11. Meunier Estate at paras 68 and 73.
12. Meunier Estate at para 75.
13. Meunier Estate at para 76.
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