On August 8, 2022, I appeared before the Honourable Justice M.A. Marion (Justice Marion) in Calgary morning civil chambers on behalf of my clients, the named Personal Representatives of the estate of their late mother (the Deceased), to seek the validation of the Deceased's testamentary documents. The documents in question were a will dated January 21, 2004 (Will) pursuant to section 37 of the Wills and Succession Act, SA 2010, c W-12.2 (WSA), and the validation and/or rectification of the typed codicil dated January 24, 2004, and its components, (the Codicil) pursuant to sections 37 to 39 of the WSA.
The Will and Codicil were both invalid pursuant to the WSA. The Will is only signed by one witness and therefore fails to comply with the requirements of being signed in the presence of two witnesses as per section 15 of the WSA. Sometime after the signing of the Will, the witness was diagnosed with advanced dementia and so was unable to sign an Affidavit of Witness to confirm her signature for the Will.
The Codicil was particularly problematic, because it is partially typed and partially handwritten. The Deceased had made handwritten additions over time, in blue pen (Blue Handwriting) and in black pen (Black Handwriting). A long-time friend of the Deceased provided an affidavit of handwriting in support of both documents.
The issues in this application were:
- Can and should the Will be validated as a valid will pursuant to section 37 of the WSA; and
- Can and should the Codicil, or any of its components, be validated or rectified pursuant to sections 37 to 39 of the WSA.
The Court determined the Will is a valid Will pursuant to section 37 of the WSA. In his review of the law, Justice Marion confirmed the common-law and statutory requirement of “clear and convincing evidence”, based on the balance of probabilities, that the Will sets out the testamentary intentions of the Deceased, in that it reflected her deliberate or fixed and final express of intention as to the disposal of her property upon death. The evidence is unopposed and included the fact that the document is titled “The Last Will and Testament” was signed by the Deceased and who had gone through the trouble of having it witnessed before a professional (accountant), and it was kept in a folder titled “Will”. The parties to the application, who are all family members of the Deceased, have sworn affidavits in support of the application, that the contents of the Will are consistent with what the Deceased had advised them were her testamentary intentions.
In analyzing the Codicil, the Court broke down the document in chronological order, based on the evidence provided:
- On January 24, 2004, the Deceased or someone on behalf of the Deceased typed the typewritten portion of the document (the Typed Codicil). This included a disposition to the Deceased's granddaughter, Manon (the Manon Disposition);
- Sometime after the Typed Codicil, the Deceased made additions to the document in handwriting, using a blue pen (the Blue Handwriting). The Deceased initialled the document in the bottom-right-hand corner.
- On March 3, 2008, the Deceased made further additions to the document in handwriting, using a black pen (the 2008 Handwriting). This included a change to the Manon Disposition, and the addition of a specific gift for one of the Applicants. Of the 2008 Handwriting, only the change to the Manon Disposition was initialled.
Absent a signature, the Typed Codicil on its own fails to meet the requirements of a formal Will under section 14 of the WSA. The Court also found there was insufficient evidence to rectify the Will to add a signature.
However, the Court found the validity of the Codicil at the time of the Blue Handwriting could be considered for validation under section 37 of the WSA as a formal codicil or formal Will that is non-compliant with section 15 of the WSA, because the Blue Handwriting included the Deceased's initials. It was found that handwritten initials can constitute a “signature” of the testator, provided they are a mark intended to represent the testator's name. Based on the foregoing, the Court declared the Typed Codicil and the Blue Handwriting together make one valid codicil pursuant to section 37 of the WSA. Ultimately, the Court decided the Applicants have leave to submit a desk application for a Grant of Probate for the Will and the Typed Codicil (with the Blue Handwriting).
The Court also declared that, if necessary, the change to the Manon Disposition in the 2008 Handwriting is a valid codicil pursuant to section 37 of the WSA. This gives the clients leave to submit to its disposition in an application for a Grant of Probate if they do so wish. Absent a signature, the remainder of the 2008 Handwriting was neither validated nor rectified.
The decision of the Court is novel as it shows it is possible to have multiple codicils within one document, using a thorough and careful analysis of each addition and alteration to the document. More importantly, it showcases the importance of preparing a properly executed Will. Although it was the Deceased's intention to simplify matters for her family by having documents in place, an improperly prepared and executed Will may cause confusion not only for your family members, but for the Court. The terms of a Will may be clear to you, but they may be ambiguous to others. A Will is your final gift to your loved ones, and the best way to provide for them after your passing is to have estate planning documents properly prepared.
If you have any questions, or require assistance with your estate planning documents, please do not hesitate to contact our wills and estates team at MerGen Law.
Disclaimer: The information is intended to provide commentary in this area of law and should not be interpreted as providing legal advice. We recommend a lawyer be contacted before acting on any of the information provided.
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