A Wills Variation Action ( S. 60 WESA) may Be commenced even after death of Disappointed Beneficiary by his or her personal representative as per Currie Estate v Bowen ( 1989) 35 BCLR (2d) 46.
In that case the husband died six weeks before his wife and his will made no provision for his wife.
The court held that the wife’s right of action under the wills variation act vested at the date of the husband’s death, and that the wife’s personal representative had the right to bring a wills variation action after her death.
They had been married 25 years and there were no children of the marriage. That husbands will made no provision for his wife and his estate was valued at $517,000`, and hers at $130,000.
The plaintiffs were the children of the wife from an early marriage, and the administrators of her estate.
The defendants were the husband’s executor and the children of the husband’s first marriage. The plaintiffs commenced an action under the wills variation act and the defendants applied to dismiss the action.
The court dismissed the application holding that the wills variation act gave the wife the right to claim and equitable share in her husband’s estate, a right which vested at the time of his death. Because the right to advance the claim was granted by statute, and was not founded in tort, and was broader than a claim for mere support or maintenance, the cause of action therefore survived death. Although the statute did not explicitly authorize the claim to be made by the personal representative of the deceased, that right was implied.
In Barker v. Westminster Trust Co., 57 B.C.R. 21, [1941] 3 W.W.R. 473, 614 [1941] 4 D.L.R. 514 (C.A.), the Court of Appeal wrestled with this issue in an inconclusive way. O’Halloran J.A. held that an action under the Testator’s Family Maintenance Act survived the death of the claimant. He said at p. 478:
In the language of Lord Mansfield, cited supra, the appellant’s cause of action is founded in a duty which the testatrix owed him.
That duty was imposed by the statute when it provided the Court should intervene on the application of a wife, husband or child who claimed to have been deprived of “proper maintenance” in the will of the testator. It must follow therefore that the appellant’s right to apply under the statute passes to his executors. That being so, and the maxim actio personalis moritur cum persona being excluded, the objections to the motion to add the executors of the appellant as parties must fail.
And he concluded by saying, at p. 495:
In the circumstances I see no grounds for depriving the husband of that share in the estate of his wife which the policy of our law has indicated to be adequate, just and equitable if she had not made a will.
He went on to rely on s. 13 of the statute to which reference has been made above. McDonald J.A. came to the opposite conclusion. His opinion is summarized at p. 496:
It seems however advisable to consider the question on broader lines as well. The long title of the Act shows that it is an Act to secure adequate and proper maintenance for the persons entitled to apply and under sec. 3 the Court is to give for that purpose what is “adequate, just, and equitable in the circumstances.”
The peculiar nature of these powers if fairly obvious; though the terms “just” and “equitable” are used they cannot be used in the technical sense, for no standard is provided, and “justice” and “equity” in the legal sense presuppose some standard. Obviously the statute uses these terms in a popular and looser sense; the Court is to apply moral or ethical standards. The Court is to be governed by the applicant’s needs and moral claims and not by anything resembling legal rights.
Sloan J.A. gave the third decision, and while he aligned himself with O’Halloran J.A. in the result, he found it unnecessary to come to a conclusion at this point.
Wills validly made in foreign countries will be easier to prove under WESA S.80
The criteria are reasonable and not onerous to meet.
Validity of wills made in accordance with other laws
80 (1) A will is valid as to the formal requirements for making the will and is admissible to probate if it is made in accordance
with the law of the place where the will is made,
with the law of the will-maker’s domicile, either at the date the will is made or at the date of the will-maker’s death,
with the law of the will-maker’s ordinary residence, either at the date the will is made or at the date of the will-maker’s death,
with the law of a country of which the will-maker was a citizen, either at the date the will is made or at the date of the will-maker’s death,
with the law of British Columbia, but the will is made outside British Columbia,
with the law of the place where the will-maker’s property is situated at the date the will is made or at the date of the will-maker’s death,
(g) in the case of a will made on board a vessel or aircraft of any description, with the law of the place with which, having regard to the registration, if any, of a vessel or aircraft, the vessel or aircraft is most closely connected, or
(h) to the extent that the will exercises a power of appointment, with the law governing the essential validity of that power.
(2) If a will is not valid under subsection (1), it is deemed to be valid if a subsequent amendment to the law of the relevant jurisdiction before the deceased person’s death would have validated the will.
(3) The formal validity of a will that revokes
a will that would be treated as formally valid under this Division, or
a provision of a will that would be treated under this Division as a formally valid provision,may be determined by reference to any law under which the revoked will or provision of the will would be treated as formally valid and that is relevant for that purpose under this division.
s.81 Resort to other aids to constructionIn the construction of a will to which this Division applies, the court may resort to the law of the place where the will-maker was domiciled or was ordinarily resident at the time the will was made.may be determined by reference to any law under which the revoked will or provision of the will would be treated as formally valid and that is relevant for that purpose under this Division.
In an uncontested application Re the Estate of David Woolrich, deceased Vancouver Registry V140043 ( unreported dated January 21,2015, ), Justice Russell approved a short 4 page hand printed suicide note of the deceased as his last will and testament under the curative powers of S 58 WESA.
Affidavit materials filed made it clear that it was the deceased who wrote the note and that it was his final testamentary intention.
To the writer’s knowledge this was the first of such an order in BC, and the court substantially followed the law of Manitoba as I had predicted last year in some blogs when the WESA legislation was introduced.
In particular the court adopted Manitoba’s leading case on the court’s curative effect to remedy otherwise defective wills as set out in George v Daily ( 1997) 1`43 DLR (4th) Man CA and its discussion of determining the testators last testamentary intentions.
The court also followed law from Nova Scotia to support it conclusion, namely Furlotte v MvAllister 2005 NBQB 310 and Sweeney Cunningham Estate v Sweeney 2013 NSSC 299 to further illustrate the required” fixed and final intentions” in other contexts.
The widow of Robin Williams is locked in a bitter legal dispute with the late actor’s children over his estate, leaving them “heartbroken” over her “greed”.
Susan Schneider Williams, the comedian’s third wife, has filed a lawsuit against his three adult children from previous marriages in a disagreement over property left in his will.
Williams died at his northern California home last August aged 63. The coroner ruled his death a suicide.
The actor and comedian had been struggling with depression, anxiety and a recent Parkinson’s disease diagnosis when his personal assistant found him dead.
In his will, Williams stipulated how he wanted his $45 million (£30 million) fortune to be split up, but his widow is now formally contesting it.
In papers filed in December at San Francisco Superior Court, Williams’ wife has asked the court to exclude the contents of the $7 million home that she shared with Williams, including any jewellery, memorabilia and other items he wanted the children to have.
She argues that as her husband wanted her to stay at their marital home in Tiburon, north of San Francisco, it follows that he intended only for his children to have items he kept at another home he owned in Napa, California.
“Any other interpretation would lead to Mrs Williams’ home being stripped while Mrs Williams still lives there,” her lawyers wrote.
Williams’ trust granted his children his memorabilia and awards from his 40-year career in the entertainment industry, including his 1998 Oscar for the movie Good Will Hunting, six Golden Globes, two Emmys and five Grammys
Robin Williams with wife Marsha and son Zak in 2002 (Rex)
Zak, 31, Zelda, 25, and Cody Williams, 22, counter that Mrs Williams, who has two teenage sons of her own, is attempting to redefine her late husband’s will.
The children acknowledge Mrs Williams, a graphic designer who married their father in 2011, has the right to keep items that she accumulated with the comic during their marriage, but believe she is trying to alter some of the terms listed.
They claim she is trying to “redefine the word jewellery” to keep a watch that belonged to the Mrs Doubtfire star.
Mrs Williams also accuses his children – from Williams’ two previous marriages – of taking items from her home in the weeks after his death without permission.
She asserts that she lost her husband through “a shocking and emotionally charged event,” and had not been “given time to grieve her loss free from the frenetic efforts to interfere with her domestic tranquillity.”
Susan Schneider Williams was married to the actor for three years before his death (Rex)
James Wagstaffe, Mrs Williams lawyer, said on Monday his client was only seeking guidance from the court about the meaning of certain terms in the trust.
“This is not ugly,” he said. “I would not say this is anticipated to be a highly contested proceeding.”
But Williams’ children say that she repeatedly refused them access to family photos and “precious” collections of Japanese anime figurines, watches, bicycles, books, coins and other effects that Williams carefully amassed over his lifetime and intended to bequeath to them.
They accuse Mrs Williams in court documents of attempting to ignore the “plain language of his will and trust”, and underscored their feelings by mentioning that she was married to the actor for “less than three years.”
They wrote that they were “heartbroken” over her “greed” and that Mrs Williams has “acted against his wishes by challenging the plans he so carefully made for his estate.” and are “adding insult to a terrible injury”.
The court case shines a spotlight onto the late actor’s affairs, which he had always been at pains to keep private.
He shunned the Hollywood lifestyle, living much of his last 20 years in the small town of Tiburon, where he grew up.
Re Richardson 2014 BCSC 2162 is becoming one of a number of cases that have now found couples to be living in a marriage like relationship despite having two residences.
The FACTS
The Deceased died in 2014, without will .The Applicant C claimed to be a common-law spouse of deceased.
C sought a grant of administration without will , but the brother of deceased claimed that C’s was not the deceased’s spouse.
C made application for grant and succeeded.
C and the deceased presented themselves as couple to friends and community.
The deceased was involved with C’s children and acted as father figure to them.
Although C and the deceased maintained separate residences, they spent time at each other’s residence.
The Residences were maintained due to couple’s work and family commitments in different locations.
As there was common-law relationship, C was entitled to money from deceased’s estate.
THE LAW
a) Was there a marriage-like relationship?
19 Section 130(a) of WESA states that, if a person dies without a will, administration of the deceased person’s estate may be granted to “the spouse of the deceased person …” The applicant says she is the spouse of Mr. Richardson; the disputant disagrees.
20 Section 2 of WESA defines a spouse as follows:
When a person is a spouse under this Act
2 (1) Unless subsection (2) applies, 2 persons are spouses of each other for the purposes of this Act if they were both alive immediately before a relevant time and
(a) they were married to each other, or
(b) they had lived with each other in a marriage-like relationship for at least 2 years.
21 If the applicant is the spouse of Mr. Richardson s. 20 of WESA applies:
Spouse but no descendants
20 If a person dies without a will leaving a spouse but no surviving descendant, the intestate estate must be distributed to the spouse.
22 A leading authority with respect to the meaning of “marriage-like relationship” (sometimes also referred to as “cohabitation”, Campbell v. Campbell, 2011 BCSC 1491 (B.C. S.C.) at para. 80) is Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.):
[16] I propose to consolidate the statements just quoted by considering the facts and circumstances of this case with the guidance of a series of questions listed under the seven descriptive components involved, to varying degrees and combinations, in the complex group of human inter-relationships broadly described by the words “cohabitation” and “consortium”:
(1) SHELTER:
(a) Did the parties live under the same roof?
(b) What were the sleeping arrangements?
(c) Did anyone else occupy or share the available accommodation?
(2) SEXUAL AND PERSONAL BEHAVIOUR:
(a) Did the parties have sexual relations? If not, why not?
(b) Did they maintain an attitude of fidelity to each other?
(c) What were their feelings toward each other?
(d) Did they communicate on a personal level?
(e) Did they eat their meals together?
(f) What, if anything, did they do to assist each other with problems or during illness?
(g) Did they buy gifts for each other on special occasions?
(3) SERVICES:
What was the conduct and habit of the parties in relation to:
(a) Preparation of meals,
(b) Washing and mending clothes,
(c) Shopping,
(d) Household maintenance,
(e) Any other domestic services?
(4) SOCIAL:
(a) Did they participate together or separately in neighbourhood and community activities?
(b) What was the relationship and conduct of each of them towards members of their respective families and how did such families behave towards the parties?
(5) SOCIETAL:
What was the attitude and conduct of the community towards each of them and as a couple?
(6) SUPPORT (ECONOMIC):
(a) What were the financial arrangements between the parties regarding the provision of or contribution towards the necessaries of life (food, clothing, shelter, recreation, etc.)?
(b) What were the arrangements concerning the acquisition and ownership of property?
(c) Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship?
(7) CHILDREN:
What was the attitude and conduct of the parties concerning children?
23 Other authorities have emphasized that this is not a checklist and “these elements may be present in varying degrees and not are all necessary for the relationship to be found conjugal” (M v. H, [1999] 2 S.C.R. 3 (S.C.C.) at para. 59; cited in Austin v. Goerz, 2007 BCCA 586 (B.C. C.A.) at para. 57; the Court of Appeal equated “conjugal” with “marriage-like” in the same paragraph).
24 In Austin, at para. 58, the Court of Appeal also adopted the following statement from a Saskatchewan case (Yakiwchuk v. Oaks, 2003 SKQB 124 (Sask. Q.B.)):
[10] Spousal relationships are many and varied. Individuals in spousal relationships, whether they are married or not, structure their relationships differently. In some relationships there is a complete blending of finances and property – in others, spouses keep their property and finances totally separate and in still others one spouse may totally control those aspects of the relationship with the other spouse having little or no knowledge or input. …
[Emphasis added by the Court of Appeal]
25 Turning to the evidence, there is no serious dispute that the applicant and Mr. Richardson had a loving and intimate relationship. As the disputant deposes, they “loved each other and they had a good relationship.” Other evidence from the disputant confirms the intimate nature of the relationship. In addition, there is no dispute that the relationship lasted more than two years. The evidence does not include a specific date of cohabitation but the relationship started in 1999 and there is evidence that they were known as a couple on Gambier Island in 2002.
Parties often cannot agree on what the contract between themselves actually meant, so principles of contract interpretation have developed over years.
The principles of interpreting a contract were clearly articulated by the Court of Appeal in Athwal v. Black Top Cabs Ltd., 2012 BCCA 107:
[42] The contractual intent of parties to a written contract is objectively determined by construing the plain and ordinary meaning of the words of the contract in the context of the contract as a whole and the surrounding circumstances (or factual matrix) that existed at the time the contract was made, unless to do so would result in an absurdity. Where the language of a contract is not ambiguous (that is, when viewed objectively it raises only one reasonable interpretation), the words of the written contract are presumed to reflect the parties’ intention. An interpretation that renders one or more of the contract’s provisions ineffective will be rejected.
[43] Extrinsic evidence to explain the meaning of an unambiguous contractual provision is not admissible. Evidence of a party’s subjective intention in executing the contract, or of their understanding of the meaning of the words used in the contract, is not admissible to vary, modify, add to or contradict the express words of the written contract. This is particularly so where a contract contains an “entire agreement” clause. …
[71] The Court of Appeal in Atwal referred at some length to its earlier decision in Water Street Pictures Ltd. v. Forefront Releasing Inc., 2006 BCCA 459 in describing how and when extrinsic evidence may be considered to aid the interpretation of an agreement which provided:
Daughters expect the same inheritances as sons and if they do not receive an adequate and just share, they have the right to claim for a wills variation under Section 60 WESA.
I was contacted by a Notary today enquiring if it was permissible for an ethnic client of his to leave her entire assets to her oldest son and to disinherit her other children who were primarily daughters, and I advised that under BC law, daughters and sons have an equal expectation of inheriting from their parents.
This is a common question and I took the liberty of sending him a copy of the decision Prakash and Singh v Singh 2006 BCSC 1454, where a mother left most of her assets to her two sons and only $10,000 each to her daughters.
The daughters successfully sued and were awarded a near equal share to their brothers.
The LAW
The reasoning of Smith J. in Ryan v. Delahaye Estate, 2003 BCSC 1081, 2 E.T.R. (3d) 107 at paras. 67-68:
“The adequacy of a moral claim is not easy to assess, especially where a child has not been disentitled, but has received something less than her sibling. In the absence of express reasons for an unequal distribution, contemporary standards create a reasonable expectation of children sharing equally in a parent’s estate. However, no legal obligation exists to do so. The court must be cautious that it does not use the legislation to rewrite the will and thereby disregard the testatrix’s motives or reasons in distributing her estate in the manner she has chosen.
Express reasons for the distribution of an estate form the basis for determining if the distribution of a testatrix’s estate is adequate, just and equitable. The law requires an examination of the accuracy of the express reasons in order to determine if they are accurate and therefore valid and rational in the circumstances that existed at the time of the testatrix’s death.”
[57] In terms of moral obligations, Mrs. Singh chose an option that fell short, that is, according to the moral norms of our Canadian society. A variation is needed.
[58] In modern Canada, where the rights of the individual and equality are protected by law, the norm is for daughters to have the same expectations as sons when it comes to sharing in their parents’ estates. That the daughters in this case would have this expectation should not come as a surprise. They have lived most of their lives, and their children have lived all of their lives, in Canada.
[59] A tradition of leaving the lion’s share to the sons may work agreeably in other societies with other value systems that legitimize it, but in our society, such a disparity has no legitimate context. It is bound to be unfair, and it runs afoul of the statute in this provinc
Re Richardson Estate 2014 BCSC 2162 also dealt with the new WESA rules relating to the removal of a Notice of Intention to Dispute ( the former probate caveat), finding that the test is whether it is in the best interests of the estate to do so.
In Re Richardson, the Judge found that between the contesting parties, the wife was a common law spouse who would inherit the entire estate, then it was only to follow that the Notice of Intention to Dispute would be removed as the matter in issue had been resoled.
Best interests of the estate
[54]New Supreme Court Rules came into force with WESA. The applicant seeks the removal of the disputant’s notice of dispute pursuant to the new Rule 25-14(1)(h). Rule 25-10(11) sets out the grounds for removal:
Grounds on which notice of dispute may be removed
(11) On an application under subrule (10), the court may, by order in Form P31, remove a notice of dispute if the court determines that the filing is not in the best interests of the estate.
As with WESA itself, counsel advise that there are as yet no cases interpreting these Rules.
[55]As a first point it is useful to return to the July 21, 2014 notice of dispute. The basis of the dispute is that the disputant “… disputes that [the applicant], who is applying by Letters of Administration and claiming to be the sole beneficiary, is a spouse of the deceased.” As above, I have found that the applicant was the spouse of Mr. Richardson and that his intestate estate must be distributed to her, pursuant to ss. 2(1) and 20 of WESA, respectively. Those findings are, in my view, conclusive as to the dispute in this case and I can find no basis for proceeding further. Put another way, I conclude that it would not be in the best interests of the estate to leave a spent dispute lying over the estate.
[56]A related matter is I have decided above that there should not be an adjournment of the applicant’s application so that a full or summary trial can take place. The evidence in this case is by affidavit. While there are clear differences between affidavit evidence andviva voceevidence, the former are entirely adequate for the issues in this case.
[57]I was directed by the disputant to the approach prior to WESA under the then Rule 19(24). Different language was used and the issue was whether to strike a caveat under the then Rule 19(24). It provided that a caveat could be struck if it “discloses no reasonable claim or defence as the case may be”, among other reasons. Before a caveat was struck out it had to be “plain and obvious” that it did not disclose a reasonable claim (or defence). As well, it was to be assumed that the facts plead were true and any doubt was to be resolved in letting the pleading stand (Chang Estate v. Chang,2010 BCCA 111 at para 39; citingHunt v. Carey Canada Inc.,[1990] 2 SCR 959).
[58]As can be seen above, the new language in Rule 25-10(11) describes removing a notice of dispute and whether that would be in the “best interests of the estate.” In my view this is broad language and with a substantially different objective than the previous Rule. Instead of a focus on the nature of the pleadings under the previous Rule, the focus now is on the estate and what is in its best interest.
[59]It is submitted on behalf of the disputant that the test to be applied to this new language is a three stage test: does the disputant have standing to challenge the will or appointment of an administrator without a will; is there a reasonable claim or a legitimate issue to be contested; and is the removal of the notice of dispute consistent with protecting the integrity of the probate and administration process? There is considerable overlap between this approach and the approach under the former Rule 19(24) inasmuch as both focus on the merits of the dispute and the process of probate and administration. Those matters may in some circumstances be relevant to determining the best interests of the estate. However, the best interests of the estate is broader language and capable of including other issues.
[60]Another aspect of the submission of the disputant is to say that it “will always” be in the best interests of the estate to challenge the appointment of an executor or administrator thus making valid any challenge. As a very general proposition I accept that valid disputes should not be discouraged. However, making it a final legal conclusion as a matter of interpreting WESA and the new Rules would, in my view, make Rule 25-10(11) essentially a dead letter because no notice of dispute could be removed.
[61]There is a previous case which provides some assistance in the interpretation of the phrase “best interests of the estate” (Re: Estate of Fannie Cleverley, 2000 BCSC 1454 at paras. 24-26). In that case a beneficiarysaid that an executor was not protecting the beneficiaries because he was not pursuing litigation on behalf of the estate. The executor, appearing on his own, said that the litigation in question would involve substantial costs for a nominal value to the estate of not more than $20,000. The executor submitted to the court that it would not be in the best interests of the estate to pursue the litigation. Master Joyce (as he then was) concluded that he was in no better position than the executor with whom he agreed.
[62]Looked at in this light, the best interests of the estate are an economic issue, one requiring the weighing of the value of a decision or issue in dispute with the overall value of the estate. I conclude that this approach has some merit in interpreting Rule 25-10(11) in this case. I hasten to add that non-economic issues can be important to the best interests of the estate such as, for example, situations involving personal items or even real property that has unique value. Those circumstances are not a concern here.
[63]In this case the potential estate of Mr. Richardson includes about $105,000 in term deposits and cash. I note that this is an imprecise estimate in as much as it is based on what Mr. Richardson told Ms. Weiser in 2010. I presume that the imprecise estimate of the estate arises from the fact that there is no administrator who has authority to itemize or value the estate.
[64]In reaching the estimate of $105,000, I have excluded an RRSP and investment account, as described by Ms. Weiser, because the applicant is the named beneficiary. With respect to land, as discussed above, there are State of Title Certificates indicating that Mr. Richardson is the owner of the property at 837 West Bay Road and another property.
[65]The potential estate of Mr. Richardson includes the $105,000 in cash and term deposits as well as the value of his interest in the properties on Gambier Island. I acknowledge the importance of this estate to the applicant and the disputant but it is also appropriate to point out that it is not a large estate as measured by its value. Nor is it a large amount when compared with the cost of litigation, litigation that has essentially been answered by the finding above that the applicant was the spouse of Mr. Richardson.
[66]On this basis I conclude that it is in the best interests of the estate to remove the notice of dispute in this case.
A Manitoba case Roelofs Estate, Re 2004 MBQB 280 discusses the legal effect of a testator writing the word VOID on his will, and the Court’s finding that the curative effect of their legislation applied not only to curing defects in wills and codicils, but also to Revocations of a will. Once again, it is likely that under WESA, this case rationale would be followed in British Columbia. Prior to WESA the written word Void would have been disregarded by the Courts.
Under WESA and the curative effects of section 58, the Manitoba Roelofs case confirmed that the curative effects of the Court to find a will valid, applied equally to determine that a will was revoked where it was clear that the testator intended to revoke the will.
Facts of Case:
The testator had three children when he married for a second time . He made will in 1985 leaving the entirety of his estate to his new wife ,but he and his wife separated in 1987 and the testator entered into a new relationship.
The testator made will in 1995 in which he purported to revoke all prior wills and left estate to new spouse .
The second will however was not made in accordance with Wills Act as there was only one witness.
The testator wrote word “void” on original and copies of second will.
The Public Trustee was made committee of the testator pursuant to Order of Committeeship in 2001. The testator died in 2004 leaving an estate consisting of cash balance of approximately $16,000, and the Public Trustee applied to be appointed litigation administrator of the estate and for advice and direction concerning the distribution of the estate.
The Court allowed the application holding that the mere writing of word “void” was not in accordance with Act, which requires signature of testator and two witnesses, BUT
Section 23 of the Manitoba Wills Act applied not only to testamentary intentions of deceased but intention of deceased to revoke, alter or revive will of deceased .
Accordingly, the revocation was as effective as though it had been executed in compliance with Act .
The writing of the word “void” on both original and copies of will clearly showed intention that will was to be cancelled and of no further effect.
The Revocation was unquestionably in the testator’s handwriting and nothing could have been added by signature
The previous will was not revived by mere revocation of second will , as both wills were revoked and estate went on an intestacy, which meant that it would go to his natural children of the testator as his first wife gave up all statutory claims to estate under their separation agreement .
Legal Discussion
Because I have declared the second will to be valid, notwithstanding the non-compliance with the Act, it follows that this revocation is also valid and has the effect of revoking the previous will in favour of the wife of the deceased, Josephine Roelofs.
12 However, the complication is that it appears that the second will has been revoked by the act of the deceased writing the word “void” on the face page.
13 According to s. 16 of the Act (supra), a will can be revoked by a later writing declaring an intention to revoke it and made in accordance with the provisions of the Act. The mere writing of the word “void” was not in accordance with the Act, which requires the signature of the testator and two witnesses. However s. 23 applies not only to the testamentary intentions of a deceased but the intention of a deceased to “revoke, alter or revive” a will of the deceased and I would order that the revocation is as effective as though it had been executed in compliance with the Act because I am satisfied that it was the clear intention of the deceased to revoke the will.
14 The writing of the word “void” on both the original and the two copies of the will clearly shows an intention that the will is to be cancelled and of no further effect. A precedent for this is the case of Canada Trust Co. v. Foster, [1991] O.J. No. 3475 (Ont. Gen. Div.), where the testatrix wrote on her will “Cancelled/Lily Downey”. The court held that the will had been revoked and the court observed:
¶10 The shorter Oxford English Dictionary, vol. 1, at p. 274 contains definitions of the word “cancelled”, some of which are as follows: “to render void; to obliterate; to put an end to; to annul by so marking.” Applying these definitions to this case would mean that the deceased intended to void her August 3, 1983 will when she used the word “cancel” or “cancelled”. …
15 In the instant case, the intention of the deceased is made even more plain by the evidence of Mr. Heywood as to the comments and demeanor of the deceased when he wrote on the will and the copies.
16 It is true that the deceased did not sign the purported revocation but it was unquestionably in his handwriting and nothing would have been added by a signature.
17 The previous will was revoked by the second will and was not revived by the mere revocation of the second will. See Canada Trust Co. v. Foster (supra). Under s. 20(1) of the Act, a will that has been in any manner revoked is revived only (a) by a will made in accordance with the Act or (b) by a codicil made in accordance with the Act that shows an intention to revive the will or part that was revoked.
18 The result is that both wills are revoked and the estate goes as on an intestacy, which means that it will go to the natural children of the deceased. Under the separation agreement between the deceased and his wife, the wife gave up all statutory claims to the estate.
It is clear that Manitoba Case Law Re WESA Directs the Court to Determine the Testator’s fixed and final intention re the Contents of the Will, as was discussed in Prefontaine v. Arbuthnott 2001 MBQB45.
The Prefontaine case may well give assistance to BC lawyers seeking guidance for S 58 of WESA, being the curative powers of the Court to cure defective wills.
The testator died in 1999 leaving a pre-typed will form which was partially completed.
There were also handwritten insertions in the will form that were made in different coloured ink on different dates, the last being made in 1982 .
The Testator had no spouse or children but had one surviving sibling who had 12 children, most of whom also had children. The Testator wrote that she had remade her will in 1982 in favour of her surviving brother’s “Son and Sons Prefontaine Only [word Only underlined] starting by the younger Raymon then Antoine and Rene and Sons [word Sons underlined]”
The Court determined that document could be admitted to probate and issue of proper construction of document arose:
Was the Estate to be divided into three equal shares, one to Raymon, one to Rene and one divided equally among sons of Antoine?
The wording of the document was ambiguous since there was general desire to benefit male descendants, but also omission of certain of his brother’s sons without explanation.
Also, there was no indication whether the estate was to bequeathed to brother’s surviving sons or whether each son of nephews Raymon, Antoine and Rene were also to receive portion.
The Court however, court had an obligation to attempt to determine testator’s intentions and give them effect.
The Court had to determine what objective meaning could be given testator’ s words given her knowledge at the time the words were written.
The words indicated that rightly or wrongly, the testator had chosen to favour male descendant of family, and by naming particular nephews and their sons, the testator had indicated she intended to benefit them to exclusion of unnamed nephews. The word Sons after nephew’s name indicated intention to benefit a named nephew and if he was deceased, then his sons, and not to add sons as additional beneficiaries.
The Law: Contents of Will
22 The provisions of the Act determine whether a document is capable of being admitted to probate. Generally speaking, a will is valid only when it is in writing; it is signed by the testator; the testator makes or acknowledges the signature in the presence of two or more witnesses present at the same time; and two or more of the witnesses attest and subscribe the will in the presence of the testator. These have become known as the formal requirements of a will.
23 The Act, however, also provides for a will to be valid if it is wholly in the person’s own handwriting and signed at its end by the person, without formality, and without the presence of, or attestation or signature by a witness. This is known as a holograph will.
24 Over the years, a number of situations have arisen whereby wills did not meet either the formal or the holograph requirements of the Act and have not been admitted to probate because of some defect in the manner in which they were executed or prepared. As a result, the Legislature enacted s. 23 of the Act. That section originally provided that where, upon application, if the court was satisfied that a document or any writing on a document embodied the testamentary intentions of a deceased, the court could, notwithstanding that the document or writing was not executed in compliance with all the formal requirements imposed by the Act, order that the document or writing be fully effective as though it had been.
25 Early cases seeking to apply that section interpreted it as requiring some attempt to comply with the Act. In 1995, the section was amended to the effect that the document may be accepted by the court whether or not it is executed in compliance with any or all of the formal requirements imposed by the Act.
26 The leading case since the reenactment of s. 23 is that of George v. Daily, supra. In that case, the testator had met with his accountant (the intended executor) and had advised him of changes he wished to his existing will. The intended executor forwarded to a lawyer the revised will with a letter of instructions for the preparation of the new will. The testator died before the new will could be prepared for signature. The intended executor applied for advice and direction of the court. At the Court of Queen’s Bench, the letter of instructions was declared fully effective as though executed in compliance with all the formal requirements of the Act.
27 While the trial judge accepted the document as being an expression of the deceased’s testamentary intentions, the Court of Appeal did not. In reaching his decision, speaking for himself and Scott C.J.M., Philp J.A. reviewed the jurisprudence, the purpose behind the enactment of s. 23 and the reason for the formalities of the Act. He concluded that while the Legislature had clearly indicated it was not necessary that the document presented to the court be in compliance with, or was even attempted to be in compliance with, the formalities of the Act, it was necessary that the document be seen by the court as a document which the deceased intended to have testamentary effect. He stated, at pp. 41-42:
[58] The Commission did not recommend that the requirements and formalities of the Act be revoked, or that testamentary law be profoundly altered. And, in my view, the enactment of s. 23 did not do so. The section must be interpreted and applied in the context of all of the provisions of the Act and the jurisprudence which has developed over the centuries.
[59] It remains a fundamental and universal proposition “that nothing can receive probate which was not intended to be a testamentary act by the testator” . . . . ( . . . The principle remains the same: the intention that the instrument record the final (but revocable) wishes of the deceased as to the disposal of his/her property after death.)
[60] Section 23 can be invoked to give effect to the testamentary intentions of a deceased in the face of imperfect compliance, even noncompliance, with the formalities of the Act. Section 23 cannot, however, make a will out of a document which was never intended by the deceased to have testamentary effect.
28 He then further stated, at pp. 42-43:
[64] The term “testamentary intention” means much more than a person’s expression of how he would like his/her property to be disposed of after death. The essential quality of the term is that there must be a deliberate or fixed and final expression of intention as to the disposal of his/her property on death . . . .
[65] In my opinion, these are the principles which must be applied in the determination under s. 23 as to whether or not a document or writing embodies the testamentary intentions of the deceased. Whether it is the deceased’s own instrument or the notes or writing made by a third-party, the crucial question to be answered is whether the document expresses the “animus testandi” of the deceased – a deliberate or fixed and final expression of intention as to the disposal of his/her property on death.
29 In summary, it is necessary for the court to be satisfied that the document is one that expresses Miss Prefontaine’s true intentions with respect to her estate.
30 Counsel for the applicant argues that on the issue of whether it expresses testamentary intentions, the wording of the document is of less importance than its existence. The issue of what can be determined from the wording should be considered when one looks at the issue of construction of the terms of the will as opposed to whether or not it is intended to be a will in the first place. I agree with that statement.
31 I was referred to the case of Belser v. Fleury (1999), 27 E.T.R. (2d) 290 (Man. Q.B.), a decision of my colleague Mr. Justice Wright where he was presented with a factual situation similar to the one here. In that case, the document purported to be the testator’s will consisted of a stationer’s form with the blanks in some parts, but not all, filled in with handwriting. The applicant said the document was given to him by the deceased the day after it was completed. It was not found amongst the personal effects of the deceased. Given the provisions of s. 23 of the Act, Wright J. had no difficulty in concluding that if the document in question could be established as having been made by the deceased, it adequately identified his testamentary intention. However, on the issue of whether it had indeed been made by the deceased, he did not feel that the proof was sufficient. He noted that no one had seen the deceased make the document. The evidence on handwriting was conflicting. In the circumstances, Wright J. found that considerably more evidence was necessary to satisfy the court that the handwriting in the document was that of the deceased. At the very least, some expert evidence would have been required.
32 I believe the Belser case is distinguishable from the facts at hand. In this case, the two independent witnesses, namely, the bank employees, were able to identify the handwriting as being that of Miss Prefontaine. They have also identified the signature on the envelope, which is in the same ink as the last four lines of the handwriting on the back of the document proper.
33 The evidence of those two witnesses has not been challenged by cross-examination. It comes from sources that are not interested in the outcome of the case. It bears significant weight in my view. Admittedly, the bank employees are not handwriting experts nor does either affidavit indicate that they have compared the handwriting on the document with the signature card on file at the bank. Nevertheless, they were familiar with Miss Prefontaine’s handwriting and signature. I accept their evidence that it is the handwriting and the signature of Miss Prefontaine on the document and on the envelope.
34 Of more concern is the lack of evidence as to how the document came to be in the applicant’s possession and whether the document is an expression of Miss Prefontaine’s final testamentary intentions. While I was advised by counsel for the applicant at the hearing that I could take as an inference that the document was found amongst Miss Prefontaine’s possessions, there is no direct evidence on that point. Nor is there any direct evidence of what type of search was conducted to verify that no other document or similar document was found so as to confirm that Miss Prefontaine may not have changed her mind from 1982 to the date of her death.
35 While the lack of evidence on that point does raise a concern, the nature of the document, namely, a will form, and the words used by Miss Prefontaine lead me to conclude that the document is one which expresses her testamentary intentions at various times in her life. I recognize that the applicant is seeking to give weight to a document that was prepared in part some 27 years before Miss Prefontaine’s death. However, when one takes the document in its entirety, there is a consistency in the intentions that are expressed. The fact that the different notations were made at different times in Miss Prefontaine’s life would suggest that her intentions remained the same. The fact that she used a will form brings further credence to the suggestion that this was a document prepared by Miss Prefontaine with a view of expressing her testamentary intentions. The applicant’s evidence with respect to a conversation in the summer of 1998 where Miss Prefontaine referred to a will giving him, his son and his brother a benefit is consistent with the existence and contents of the document.
36 The suggestion that Miss Prefontaine was an eccentric who was subject to making statements out of keeping with her surroundings does not equate with a finding that she was not mentally capable of appreciating her situation sufficiently to formulate her testamentary intentions. The respondent Angela Dubois’ affidavit does not say when Miss Prefontaine allegedly made the statements or exhibited the eccentric conduct. The critical time would have been in July 1982 or earlier when it appears that she formulated her thoughts on the document. Given again that the uninterested bank employees had no difficulty in appreciating her directions or dealing with her in the last years of her life, I would have required some cogent evidence of lack of mental competency before accepting an argument that she was not capable of making her will.
37 In summary, I accept the portion of the document written in green ink as expressing the final testamentary intentions of Miss Prefontaine formulated on July 12, 1982, and order that it be fully effective as though it had been executed in compliance with all the formal requirements imposed by the Act in accordance with s. 23.”
As Reported in Todays The Telegraph.
