In a recent decision of the Manitoba Court of King's Bench, Justice Greenberg was tasked with determining the validity of a handwritten note and whether it contained the true testamentary intent of the deceased, someone who never created a formal will.
The estate in question belonged to Minnie Blustein (Minnie) and is worth around $500,000. Leaving her friends and family a sum of $1, the note directed that her estate be distributed to charity.
To be admitted as a valid holograph will, the court had to be satisfied that the deceased's writing contained a fixed and final expression of how to distribute the estate.
Background and Facts
Minnie passed away at the age of 88 on October 22, 2017. Minnie had been living in a personal care home and her affairs had been handled by the Public Guardian Trustee of Manitoba (PGT) as her committee since 2007.
The PGT was unaware of any family or friends of Minnie beyond a cousin in Ontario. However, it is unclear whether this cousin knew Minnie or only knew of her, telling the PGT only that Minnie and her mother suffered from mental health issues and isolated themselves from others. An heir tracing company located other cousins, none of whom lived in Canada or presented any evidence to the court.
When the PGT began the process of moving Minnie from her house into a personal care home, they found two notes: one from 1972 and one from 1994, both in Minnie's handwriting.
The 1972 note stated that upon her death, her estate should be used for an orphanage in Israel. The 1994 document, entitled "Blustein Family Trust", stated:
To any relations or friends who feel that they are entitled to my estate I leave the sum of one dollar which is more than they ever gave me.
The estate I leave in the hands of the public trustee, the
interest from Canada Savings Bonds into which everything is to be
invested and the cash is invested now to be divided into 3 equal
parts in the names of Bessie Blustein, Max Blustein, Minnie
& given scholarships for the needy – 50% of the interest
is to be reinvested as well as the bonds which become due yearly.
5000.00 scholarships.
There was no evidence that Minnie ever prepared a formal will; these two notes were considered her only testamentary documents. After her death, the PGT applied for direction from the court regarding whether either of the two handwritten notes could be admitted to probate as valid testamentary documents to govern the disposition of Minnie's estate. If they did not, Minnie's estate would fall to her next of kin pursuant to The Intestate Succession Act.
The court appointed counsel to represent the interests of both groups who may have a claim to the estate: counsel for charitable interests and counsel for the beneficiaries on an intestacy.
The Legal Issues
The court was tasked with answering the following questions: (1) are either of the two notes valid testamentary documents; (2) did Minnie have the requisite mental capacity to execute a testamentary disposition at the time she wrote the notes; (3) if both notes are valid, which note governs the distribution of the estate; (4) if the notes are too ambiguous to determine distribution, can the cy-près doctrine give effect to Minnie's intention.
Testamentary Intent and Capacity
The biggest challenge in this case was the scant evidence respecting both intent and capacity.
The court found that both notes met the formal requirements of a holographic will under The Wills Act. Justice Greenberg then had to decide if the notes contained the fixed and final testamentary intent of the deceased. The court stated that since this is a very fact-specific analysis, the use of precedent is generally not helpful.
The court used the longstanding common law that for a document to be considered testamentary, it must contain a "deliberate or fixed and final expression of intention as to the disposal of property upon death."
Applying this principle, Justice Greenberg concluded that both documents met the threshold of testamentary intent. In the 1972 document, Minnie explicitly referred to it as a "will" and specified charitable beneficiaries in the event of her "demise." Likewise, the 1994 note included language indicative of finality, referencing her "estate" and instructions for its distribution. The 1994 note also explicitly rejected any claims to her estate by friends or relatives. In conjunction with the evidence that no one had come to visit Minnie in the 10 years that she was at the personal care home, the court found the intestate beneficiaries had no moral claim to any part of her estate.
The court was also unpersuaded by arguments that certain elements, such as the emotional tone of the 1994 note or the fact that some names were crossed out, nullified its validity. Justice Greenberg concluded that these markings did not signify a lack of clear intent but were more likely indicative of minor revisions to the name for the intended charitable trust (the other listed names being those of her deceased parents, whose property she inherited). Crucially, the title "Blustein Family Trust" remained intact, confirming Minnie's desire to create an endowment fund for the scholarships. The court found that Minnie intended for her estate to be used for charitable purposes and this was unequivocally clear in both notes.
Mental Capacity
As duly executed holograph wills, the court is aided by a presumption of capacity at common law. The court rejected the suggestion that Minnie's later mental health issues, which led to the appointment of the PGT as her committee in 2007, cast doubt on her capacity in 1972 or 1994. These events occurred many years after the documents were authored. Courts have consistently ruled that a mental health diagnosis does not preclude testamentary capacity. The court also dismissed the hearsay claim from the Ontario cousin that Minnie had a history of mental illness.
Additionally, Justice Greenberg had evidence to suggest Minnie had capacity in 1994. Minnie was appointed administrator of her mother's estate in January 1994. This was a responsibility she undertook with legal counsel and required her to complete documentation to be appointed and administer the estate property earlier in the same year that she made the 1994 will.
Revocation
Under The Wills Act, the 1972 will was revoked by the 1994 will. Therefore, the court found the 1994 document governed the distribution of the estate.
Implementation
The cy-près doctrine is invoked when a charitable intent is found but the object is uncertain. It gives the court jurisdiction to see the gift flow to objects as near as possible to what is gleaned as the testator's intent.
While the 1994 will clearly articulated charitable intent, its organization was flawed: it designated the PGT as trustee, a role the PGT could not fulfill, though it could act as administrator of the estate. The court invoked its inherent jurisdiction—adjacent to the cy-près doctrine— to appoint a suitable administrative mechanism for implementing her clear charitable intent.
Since Minnie had no caveat or limitation for which charity or institution the endowment fund would transfer to, counsel for the charitable interests proposed a list of qualified charities and institutions which provide scholarships based on need. The court directed that the estate be used to create a scholarship endowment in the name of the "Blustein Family" with the Winnipeg Foundation, as this institution could most effectively fulfill the broad charitable intent in the 1994 will.
Takeaways
This case highlights the lengths the court will go to give effect to a deceased's clear but imperfect charitable intent in a will.
Parties, however, should not expect same willingness of a court to cure deficiencies where the beneficiaries are private individuals, where the three certainties of trust must be established for a valid disposition: intention, subject matter and object.
The legal tests for testamentary intent help ensure that a document is only deemed a valid will if it reflects the true wishes of the testator, protecting against fraud, while allowing the court to determine what the testator genuinely intended based on the presented evidence. Utilizing the instruments the court has with its inherent jurisdiction or the cy-près doctrine, the court can resolve uncertainties to ensure a testator's final wishes are realized and do not fail for their ambiguities where they are charitable in nature.
This decision promotes access to justice and honours the testator's charitable objectives while acknowledging the realities of estrangement that may characterize some testators' lives. Blustein Estate (Re) is a reminder that dignity and testamentary autonomy are central values in estate law.
Written with a report from Priya Dhillon.
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