LAW 582: WILLSHOPP

INTRODUCTION

1. Intestate Estates

Intestate Succession Act: Governs what happens to property when a person dies without a will, with an invalid will, or

when the entire property isn’t disposed of by an existing willo Section 12: whatever the will does not dispose of is distributed according to the

Act Section 1(a): estates include both real and personal property Section 1(b): issue includes all lineal descendants Section 1(c): net value is the value of the estate after payment of debts, and includes

property of the estate wherever it is situated, both inside and outside of Albertao Important provision because if only property in Alberta was considered, the

surviving spouse could claim the spousal preferred share in every province that the intestate had property (and potentially scoop the entire estate)

However, spouse can claim the difference if another province has a preferred share higher than Alberta

Section 2: if the intestate dies leaving a spouse or AIP (see Adult Interdependent Relationships Act), but no issue, then the entire estate goes to the surviving spouse or AIP

Section 3: if the intestate dies leaving a spouse/AIP and issue:o Section 3(1)(a): if the net value of the estate is less than or equal to $40 000, then

the entire estate goes to the surviving spouse/AIPo Section 3(1)(b): if the net value of the estate is greater than $40 000, the surviving

spouse/AIP is entitled to a preferred share of $40 000 and has a charge on the estate for that amount

After the spousal preferred share is paid out, count how many children there are:

If there is one child, then the surviving spouse/AIP gets half the residue of the estate and the child gets the other half (s. 3(2)(a))

If there is more than one child, 1/3 of the residue of the estate goes to the surviving spouse/AIP and the remaining 2/3 is distributed among the children, per stirpes (i.e., per branch)

o Section 3(3): treat grandchild of intestate as a child for purposes of distribution Section 3.1(1): if the intestate dies leaving both a surviving spouse and AIP, then whoever

s/he was living with last will take the spousal preferred share, to the exclusion of the othero Section 3.1(2): if neither of them were living with the intestate at the time of his or

her death, the whoever was living with him/her last will take to the exclusion of the other

Note: the other has a remedy under dependant’s relief Section 3.2: if a person takes under this Act as an AIP, s/he is not entitled to take in any

other capacity (i.e., cannot take both as an AIP and as a child)o Note: need an AIP agreement between parent and child

Section 4: per stirpes distribution

Section 5: if the intestate dies with no spouse/AIP or issue, the intestate’s estate is split equally between his/her father and mother

o If either the father or mother is dead, then the surviving parent will take the entire estate

Section 6: if the intestate dies with no spouse/AIP, issue or parents, then the estate is split equally between his/her brothers and sisters

o Representation is allowed (i.e., nieces and nephews can take if their parent has died)

Section 7: if the intestate dies with no spouse/AIP, issue, parents or siblings, then the intestate’s estate is split equally among his nieces and nephews

o No representation is allowed—per capita distribution Section 8: if intestate dies with no spouse/AIP, issue, parents, siblings or nieces/nephews,

then the intestate’s estate is split equally among his next of kino No representation allowed—split between maternal and paternal relatives on a per

capita basis Section 9: determine next of kin by counting from deceased to the nearest common

relative and then to the relativeo Half relatives will be treated as full relatives

Section 10: posthumous births will inherit the same as relatives who were alive at the date of the deceased’s death

Section 11: if a parent has died wholly intestate and has made a large advance to one child before his or her death, this advance should be taken into account when distributing the estate

o Add the advance back into the estate, divide the estate equally and the deduct the advance from the share of the child to whom the advance was made

o If the advance was bigger than the child’s share, then the estate is simply divided between the remaining children, without adding the advance back in

Section 13: if the intestate dies leaving a surviving spouse that (i) had left the intestate; (ii) was living in adultery (iii) at the time of the intestate’s death, then that person shall take no part in the intestate’s estate

o Doesn’t apply to AIP o Would still have a dependant’s relief remedy, but the Court can consider conduct

under the DRA

Wills and Succession Act, ss. 58-70, 109-112: Section 1(1)(e): descendants = all lineal descendants of an individual through all

generations Section 58(1)(b): net value includes property both within and outside Alberta Section 58(2): references to child, descendant or kindred include posthumous births Section 59: specifies that distribution of intestate estates shall occur in accordance with

this Part (Part 3: Distribution of Intestate Estates) Section 60: if intestate leaves a spouse/AIP but no descendants, the entire estate goes to

the spouse/AIP Section 61(1)(a): if the intestate leaves a spouse/AIP and descendants, but all the

descendants are also descendants of the surviving spouse/AIP, then the entire estate goes to the spouse/AIP

o Section 61(1)(b): if not all of the surviving descendants are also descendants of the surviving spouse/AIP:

(i) the spouse/AIP is entitled to the prescribed amount or 50% of the net value of the estate (whichever is greater)

(ii) the residue shall be distributed among the descendants, per stirpes (see s. 66)

Section 62: if intestate leaves both a spouse and an AIP, they will share equally (either split the entire estate or split the preferred share)

o They can also still apply for dependant’s relief Section 63(1): if the surviving spouse had been living apart from the intestate for 2 years

prior to his/her death, if they had been parties to a declaration of irreoncilability or a separation agreement, then the spouse is deemed to have predeceased the intestate

o Section 63(2): does not apply if they reconciled before the intestate’s deatho If excluded under this section, can still apply for dependant’s relief

Section 64: an individual who claims as an AIP cannot claim in any other capacity Section 65(a): if the intestate does not leave a spouse or AIP, then the estate will be

distributed to the descendants (per stirpes distribution, see s. 66) o Section 65(b): if there are no descendants, the estate will be distributed in

accordance with s. 67 (parentelic distribution—parents, grandparents etc) Section 66: per stirpes distribution (note: descendants include nieces and nephews)

o A higher representative of the branch will take to the exclusion of anyone else in the branch

Section 67(1): parents or descendants of parents (in equal shares), grandparents or descendants of grandparents (in equal shares on maternal/paternal side), great-grandparents or descendants of great-grandparents etc

o Section 67(2): relatives of the 5th degree or greater cannot inherit—deemed to have predeceased the intestate

Does not affect the right to make a claim under the Unclaimed Personal Property and Vested Property Act (s. 69(b))

Section 68(1): determine kinship by counting up from intestate to nearest common ancestor and then down to relative

o Section 68(2): half-blood relatives inherit the same as full-blood relatives Section 69(a): if no one is entitled to take the intestate’s estate, the Unclaimed Personal

Property and Vested Property Act applies Section 70: only applies to deaths occurring after 1 January 2012 Section 109(2): if a prospective beneficiary received a transfer from the deceased during

the deceased’s life, an applicant alleging that it was intended to be an advance of the beneficiary’s inheritance can make an application Court

o Section 109(1)(a): applicant = personal representative or a beneficiaryo Section 109(1)(b): prospective beneficiary = spouse, AIP or descendant

Section 109(3): Court can consider the deceased’s intention by looking at any evidence Section 109(5): if an advance is found, the advance is added back in, the net value is

determined and divided between beneficiaries and the advancee’s advance is subtracted from his or her share

o If the advance exceeds his/her share, s/he is excluded entirely Section 109(6): if the advancee predeceases the intestate, the transfer is not presumed to

be an advance Section 109(7): value of the transferred property is the value at the time of transfer Section 110(1): no presumption that a transfer to a child is an advance Section 110(2): no requirement that if a transfer does occur it must be deducted from the

child’s share

o Only if an advance is found

Intestate Estate Differences Between ISA and WSA : If there is both a surviving spouse and AIP:

o ISA: one takes to the exclusion of the other (s. 3.1(1))o WSA: they share equally (s. 62)

If there is a surviving spouse/AIP and issue and/or descendants:o ISA: the spouse/AIP gets a $40 000 preferred share and they split the residue 1/3-

2/3 (or half and half if there is only one child) (s. 3)o WSA: if all the descendants are also descendants of the spouse/AIP, the

spouse/AIP gets the whole estate. If they are not, the spouse/AIP gets 50% of the estate and the rest is distributed to the descendants (s. 61)

Explicit distribution to grandparents in WSA (s. 67(1)(c))o In ISA, they could take under the next of kin provision (s. 8)

Under the WSA, distribution to everyone is per stirpes (s. 66)o ISA: nephews/nieces, parents etc take per capita (ss. 7-8)

WSA: next of kin must be within 5th degree (s. 68)o ISA: no stipulation (s. 9)

WSA: advances to any “prospective beneficiary” (spouse, AIP or descendant) considered (s. 109(2))

o ISA: advances only to children considered (s. 11) WSA: addresses the issue of whether the surviving spouse/AIP and the deceased had

been separated at the date of the deceased’s death (s. 63)o ISA: does not address this issue

2. Dependents’ Relief

Dependents Relief Act: Section 1(1)(b): child includes a child born after the deceased’s death and a child born out

of wedlock Section 1(1)(d): dependant means:

o The spouse of the deceasedo The AIP of the deceased,o A child of the deceased who is under 18 at the time of the deceased’s death, ando A child of the deceased who is over 18 at the time of the deceased’s death and

unable to earn a livelihood because of a mental or physical disability Must have had the disability at the time of the death—cannot claim under

DRA for subsequently obtaining a disability (Hopp thinks this is a gap—a subsequently disabled child should be provided for if the estate is not yet distributed)

Section 3(1): if the will or intestacy does not provide adequate provision for proper maintenance and support of the deceased’s dependants, an application can be made by or on behalf of the dependants for support from the estate

o Note: adequate and proper are not the same thingo Section 3(2): judge can make any inquiries s/he wishes, accept any evidence s/he

wishes and direct that certain types of evidence be submitted

S/he can also consider the deceased’s reasons for making certain dispositions or for not making adequate provision, including statements made by the deceased in writing (s. 3(2)(c))

Section 3(3): when considering such a statement, the judge can decide its accuracy

o Section 3(5): when making an order for maintenance and support, the judge can consider the conduct of the dependant

Section 4: the judge can take the dependant’s dower rights into account (i.e., can make an order for maintenance and support contingent on the dependant relinquishing his/her dower rights)

Section 11: the order has effect from the date of death, and the will must be revised accordingly (i.e., Court rewrites will)

Section 12: if the testator entered into a contract during his lifetime—in good faith and for valuable consideration—to dispose of property in a certain way upon his death, and then does so in the will, the court cannot make an order affecting this property

o Exception: in the opinion of the judge, the value of the property exceeds the consideration received by the testator

Section 13(2): the Public Trustee can make an application for maintenance and support on behalf of a minor or a represented adult

o Public Trustee will know when to make such an application because they will receive notice of an application for a grant of probate whenever there is a minor or a represented adult interested in an estate (Administration of Estates Act, s. 7)

Section 14: if the deceased was living with a spouse/AIP at the date of his death and any minor child or incapacitated adult child is living with the spouse/AIP after the death and the Public Trustee is satisfied that the child is receiving adequate support, then there is no obligation on the Public Trustee to apply for relief on the child’s behalf

Section 15: must apply for relief within 6 months of grant of probateo Section 17: personal representative will be liable for any loss if s/he distributes the

estate before the 6 months has elapsed (unless s/he has consent from all the dependant’s or authorization from the court)

Section 16: the court cannot make an order unless everyone who is entitled to receive notice under the Surrogate Rules has in fact received it

Section 21: can appeal to ABCA—they can change the order even if ABQB didn’t make any error in law or principle

Wills and Succession Act , ss. 72-108: Section 72(b): a family member is

o Spouse Section 72(d): includes a party to a void or voidable marriage

o AIPo Minor children o Posthumous children o Children who are over 18 but incapacitated (at time of deceased’s death)o Children who are 18-22 and full time students

Hopp: maybe not if child was well to do in his own righto Grandchildren/great-grandchildren who are under 18 and to whom the deceased

acted as a parent Section 73(2): the grandparent demonstrated a settled intention to treat

the grandchild as his own child and if for at least 2 years preceding the

grandparent’s death the grandchild’s primary home was with the grandparent and the grandparent provided the primary financial support for the grandchild

Section 75: a surviving spouse/AIP who is not registered on title is entitled to a 90 day possession of the family home after the death of the deceased

o This right can be asserted against the estate Section 88: a family member can apply for maintenance and support whether the

deceased was testate or intestateo An “adequate order for proper maintenance and support” shall be made out of the

estateo The order can be made for more than one family member

Section 89: application for support must be commenced within 6 months of grant of probate or administration

o Or, as allowed by the court respecting property not yet distributed at time of application

o Section 106: personal representative shall not distribute estate until the 6 months have expired

Otherwise, s/he is personally liable Section 90: the following people can make an application:

o Family membero If the family member is a minor:

His/her guardian The Public Trustee

Section 91(3): not obligated to make an application when served with notice

Section 104(1): not obligated to make an application when satisfied that the minor is already receiving adequate support

Anyone entitled to do so under the Surrogate Ruleso If the family member is a represented adult:

Trustee Anyone entitled to do so under the Surrogate Rules

Section 91: sets out who must be served with notice of the application Section 92: application is deemed to be made on behalf of all family members, unless the

Court orders otherwiseo If a family member is not given notice, s/he doesn’t lose the right to make an

application Section 93: sets out the matters the Court should consider on such an application

o i.e., nature and duration of relationship, age and health of family member, ability of family member to contribute to his or her own support, legal obligations of the deceased etc

Note: no specific mention of dower rights, but might be considered part of family member’s ability to look after him/herself

Section 100: order has effect from the date of death and the will shall be changed accordingly (i.e., Court rewrites will)

Section 102: if the testator entered into a contract during his lifetime—in good faith and for valuable consideration—to dispose of property in a certain way upon his death, and then does so in the will, the court cannot make an order affecting this property

o Exception: in the opinion of the judge, the value of the property exceeds the consideration received by the testator

Then, Court can deal with the difference Section 103: cannot contract out of rights for maintenance and support Section 104: the Public Trustee can make an application on behalf of a family member, but

need not if he or she is satisfied that the family member is receiving adequate supporto Hopp: must also be satisfied that family member will continue to receive adequate

support Section 105: no liability for decisions made under this Division in good faith Section 108: this Division only applies to deaths occurring after 1 January 2012

Differences Between DRA and WSA : Terminology:

o DRA: dependant (s. 1(d))o WSA: family member (s. 72(b))

Who can apply?o DRA: spouse, AIP, child under 18 at date of deceased’s death or child over 18

who, at date of deceased’s death is unable, by reason of physical or mental disability, to earn a livelihood (s. 1(d))

o WSA: those allowed under DRA + child who is 18-22 and a full time student, and a grandchild or great-grandchild for whom the deceased stood in the place of the parent (s. 72(b))

Dower rightso DRA: the dependant’s dower rights can be taken into account (s. 4)o WSA: dower rights are not specifically mentioned, but are probably included in the

list of matters the court can consider when making an order (s. 93) Contracting out of right to maintenance:

o DRA: not specifically mentioned in the Act, but confirmed in the jurisprudenceo WSA: specifically mentioned in s. 103

Application:o DRA: every dependent must make their own application (implicit), but the Court

cannot make an order unless everyone who is entitled to notice under the Surrogate Rules has received it (s. 16)

o WSA: deemed to be made on behalf of all family members (s. 92(1)) Temporary possession of the family home:

o DRA: not mentionedo WSA: a surviving spouse or partner who is not listed on title is entitled to 90-day

possession of the family home after the deceased’s death (s. 75)

3. Adult Interdependent Relationships

Adult Interdependent Relationships Act: Section 1(1)(a): adult interdependent partner means an AIP within the meaning of section

3o Section 3(1): lived in a relationship of interdependence for 3 years, lived in a

relationship of interdependence of some permanence with a child by birth or adoption, or lived in a relationship of interdependence and has entered into an adult interdependent partner agreement

o Section 3(2): persons related by blood or adoption can only be AIPs via an agreement

Section 4(1): minors cannot have an AIR with a person they are related to by birth or adoption

Section 4(2): an AIR does not exist if one provides the other with domestic care and support for a fee

Section 1(1)(b): adult interdependent partner agreement means an agreement referred to in s. 7

o Section 7(1): agreement must be in form provided by regulationso Section 7(2): the following people cannot enter into an AIP agreement:

A party to an existing AIP agreement A married person A minor, unless s/he is 16+ and has the written consent of his/her

guardian Section 1(1)(f): relationship of interdependence means a relationship outside of marriage

in which any 2 personso Share one another’s liveso Are emotionally committed to one another, ando Function as an economic and domestic unit

Section 1(2): factors denoting an economic and domestic unit Conjugal relationship Degree of exclusivity Conduct and habits with respect to household activities and living

arrangements Degree to which they hold themselves out to be an economic and

domestic unit Etc

Section 5: restrictions:o Cannot have more than one AIP at a timeo A married person cannot have an AIP while living with his or her spouse

Section 6: a minor can be an AIP, excepto Section 4(1): with a person they are related to by birth or adoptiono Section 7(2): if they are entering into an AIP agreement, are under 16 and do not

have the written consent of their guardian Section 8: an AIP agreement is invalid if:

o There was fraud, duress or undue influenceo One of the parties lacked mental capacityo The parties were not living together or intending to live together in a relationship of

interdependence, oro One of the parties was restricted by s. 7(2)

Section 10: an AIP becomes a former AIP when the earliest of the following occurs:o Enter into a written agreement showing that they intend to live separate and apart

without hope for reconciliationo They live and at least one of them intends to live separate and apart for more than

one year o They marry each other or one of them marries a third partyo One AIP enters into an AIP agreement with a third party (for AIR’s referred to in s.

3(1)(a))o One or both AIPs have obtained a declaration of irreconcilability

Section 11: onus of proving AIR is on person asserting it

o Section 9: monetary consequences for false allegations

CHAPTER ONE: MAKING A WILL

A. Nature of Testamentary Dispositions

Wills Act: Section 22: a will speaks from death, except if a contrary intention is present in the will Section 27: if the will specifies that a particular gift or bequest shall pass to an “heir”, then

“heir” will be interpreted as the person who would take the testator’s property under the law in Alberta or on intestacy

1. What is a Testamentary Disposition?

If the nature of the gift is testamentary, the statutory formalities must be observed, otherwise the will is invalid

o Under the WSA, the formalities can also be waived (s. 37) Testamentary gift: a gift made, in writing, to take effect on the death of the testator

o Before death, the testator can still deal with the property in any way s/he desires, and can still decide to revoke the gift

o The beneficiary gets no interest until the death of the testator

Edwards v. Bradley: Facts: mother and daughter had joint account because the mother wanted someone to be

able to arrange her finances if she became unable to. o The daughter had no right to withdraw money or write cheques from the account

while her mother was still aliveo Six months before the joint account was open, the mother made a will splitting her

residual estate among all of her childreno When mother died, the joint account formed part of the residual estate

Issue: was there a testamentary disposition of the equitable interest in the joint account to the daughter?

Decision: no, the daughter had a bare legal right to the account and the signed document that opened the joint account did not show an intention for the daughter to take the equitable interest upon the mother’s death

o And, even if it did, it would be invalid because it didn’t comply with the requisite formalities

Ratio: to find a valid testamentary disposition, the testator must intend for the beneficiary to take that property upon his/ her death

Re MacInnes: Facts: man’s employer has a profit sharing plan. The man registers for the plan and

appoints his wife as the beneficiary. As the beneficiary, she will have rights to any money remaining in the account at the husband’s death. The husband can change the beneficiary at any time.

Issue: was this a testamentary disposition? Decision: yes. But, the gift was formally void because the document only had one witness Ratio: if the donor intends for the gift to be effective only upon his or her death, the

disposition is testamentary in nature

Western Smallware v. Bell: Facts: Bell loaned money to Western Smallware and, in return, required it to sign a

typewritten document that the loan was repayable on demand and that, in the event of Bell’s death, the remaining principal would go to his wife.

o The document had only one witness Issue: was this a testamentary disposition in favor of Bell’s wife? Decision: yes Ratio: if the testator wishes to retain control of the property during his lifetime and intends

that it shall only pass to the beneficiary upon his death, the disposition is testamentary in nature

o “I am satisfied that while Mr. Greenberg wanted Mrs. Helen Bell to have the balance of the principal money upon his demise, yet he wanted to retain control over it while he was living and wanted to be able legally to have it back, in whole or in part, if he so wished during his lifetime.”

2. Agreement Not to Revoke—Mutual Wills

Mutual Wills: Individual wills made by 2 or more people, pursuant to an agreement to make them

o Often, mirror image wills Mutual wills must have a further agreement not to revoke without giving reasonable notice

of the intention to revoke o The making of the mutual will is not, in itself, evidence of an agreement not to

revoke

Joint Wills: One document that serves as the will for each person who signs it

o This obviously counts as an agreement to make a joint will Also need an agreement not to revoke without notice, but this agreement can be implied

from the very existence of the joint will

Synge v. Synge: Facts: a woman married a man because he promised, in a letter, that he would leave her a

house when he died.o During his life, the husband transferred the property to his daughterso Wife sued the husband for breach of contract—once he transferred the property,

there was no way he could comply with his promise upon death Issue: was the wife entitled to succeed? Decision: yes Ratio: beneficiaries under a will take subject to pre-existing contractual obligations of the

testator

o Wills are revocable but, in certain circumstances, there will be consequences for revocation (i.e., damages, subsequent beneficiaries take subject to original beneficiaries etc)

From Stone v. Hoskins: “Though a will is always revocable…a man may so bind his assets by agreement that his will shall be a trustee for performance of his agreement.”

Stone v. Hoskins: Facts: a husband and wife make mutual wills. The wife changes the will before she dies,

but doesn’t tell her husband.o Husband challenged her new will

Issue: was the wife’s second will invalid because she did not give her husband sufficient notice of her intention to revoke the mutual will?

Decision: no Ratio: death is sufficient notice of the revocation. The survivor is still able to change

his/her will, should s/he choose to do so o Note: only because she died first

Doherty v. Berry Estate: Facts: husband and wife make wills by agreement, but do not make an agreement not to

revoke. The husband gets cancer and makes a new will whereby he gives more property to his wife than he did in the former will.

o His children object and argue that the wills were mutual; therefore, the husband couldn’t unilaterally change his

Issue: was the husband able to change his will? Decision: yes, the wills were not mutual because there was no agreement not to revoke.

o Even if the wills had been mutual, the wife had notice of the revocation because she went to the lawyer’s appointment with her husband

Ratio: three requirements of a mutual will:o Agreement to make the will and not revoke it without sufficient notice

Sufficient notice: enough time to give a capable person (i.e., with testamentary capacity) an opportunity to alter their will, if they so choose

o The agreements are found with preciseness and certaintyo The survivor takes advantage of the provisions of the mutual will

Note: Hopp says this is not an actual requirement Mutual wills do not have to benefit the survivor—it’s the

agreement that matters Furthermore, the survivor could shirk his obligations under the

agreement to make the will and not revoke it simply by not taking part in the estate of the first to die

Note: terms of a mutual will apply to property present at the date of the death of the first to die

o i.e., does not apply to property acquired by the survivor after the death of the first to die

Pratt v. Johnson: Facts: husband and wife make a joint will stipulating that all of their property would go to

the survivor of the two for life, and then would be divided between 5 named beneficiaries

o After husband died, wife made a new will and swore an affidavit that they had agreed that the survivor could make a new will and give the property whomever s/he chose

Issue: was the joint will still in effect? Decision: yes, the property was imposed with a trust in favor of the 5 named beneficiaries Ratio: even in the absence of an agreement not to revoke, a survivor cannot revoke a joint

will if death has occurred Dissent: the will only demonstrates that they agreed to the scheme at the time the will was

made—there was no independent evidence of an agreement not to revoke

Re Gillespie: Facts: husband and wife make a joint will and the wife dies. Issue: can the husband change the will? Decision: no Ratio: the mere existence of a joint will is sufficient proof of an agreement not to revoke

o A common disposition of property shows an agreement not to revoke Hopp doesn’t like this—you should need a separate agreement not to

revoke for both mutual and joint wills

Re Beauchamp Estate: Facts: two seniors decide to marry, but don’t want their marriage to revoke the wills they

have already made benefiting their individual childreno They each sign a single document stating that their last wills remain in force, that

they will not interfere with each other’s property and that their beneficiaries will still take according to their last will

Each sign and have one witnesso Wife dies and her daughter argues that the marriage revoked the will and she is

entitled to take her mother’s estate on intestacy Issue: was the agreement not to revoke their previous wills binding? Decision: no, because the document was testamentary in nature (intended to take effect

on her death). It did not comply with the formalities; therefore, it wasn’t binding and the marriage revoked the will.

Ratio: if a document is testamentary in nature, it must comply with the formalities (i.e., the agreement not to revoke was testamentary)

Note: husband couldn’t claim on intestacy because the agreement whereby he denounced any claim to the wife’s property was still binding on him

Effect of Marriage and Divorce on Wills: WA, s. 16: marriage revokes a will

o No mention of divorce WSA, s. 23(2): marriage/entering into an AIR will not revoke a will WSA, s. 25: divorce will revoke any gifts made to the former spouse/AIP

B. Testamentary Capacity

Testamentary capacity = the ability to make a valid will or the ability to validly revoke a will that has already been made

Three elements of testamentary capacity:

o The individual knows the effect of a will generally (i.e., that is meant to dispose of his/her property upon death)

o The individual knows the extent of his/her property, in a general wayo The individual knows who has claims to his/her bounty (i.e., who can reasonably

expect to receive a testamentary gift) Note: does not mean that the testator actually has to leave property to

those individuals Two additional criteria from Re Schwartz:

o The individual must be capable of appreciating these factors in relation to each other, and

o The individual must be capable of forming an orderly desire as to the disposition of his property

1. Mental Competence

Banks v. Goodfellow: Facts: the testator was suffering from insane delusions that he was being persecuted by a

man named Featherstone Alexandero He suffered from this delusion at the time that he made his will, in which he left all

of his property to his heir at law Issue: was the testator mentally competent to make a will? Decision yes. He had all 3 elements of mental capacity:

o Understand the nature of the act and its effects o Understand the extent of the property of which he is disposingo Able to comprehend and appreciate the claims to which he ought to give effect

Ratio: the mere existence of an insane delusion will not affect testamentary capacity. The delusion must interfere with one of the elements of testamentary capacity before a will is invalid.

o “…the existence of a delusion compatible with the retention of general powers and faculties of the mind, will not be sufficient to overthrow the will unless it were such as was calculated to influence the testator in making it.”

Note: insane delusions are not the only things that can interfere with testamentary capacityo Age, decline of mental ability, other conditions of the mind etc will not render a will

invalid so long as they do not interfere one of the 3 elements Note: testamentary capacity is decided on a case by case basis

In the Estate of Bohrmann Facts: testator thought that he was being persecuted by the London County Council.

o He revoked any testamentary gifts he had made to English charities and gave them instead to American charities. He had never even been to America.

Issue: did this insane delusion prevent the testator from having testamentary capacity? Decision: yes. The judge felt it hard to explain exactly how this delusion would affect the

will, but he had no doubt that it had.o Only the provision dealing with American charities was struck out because the

delusion had no other effect on the will Ratio: an insane delusion that relates to testamentary capacity will invalidate a will

Re Schwartz: The proponent of a will must prove the following:

o That the testator had testamentary capacity at the time of making the will (3 elements)

Note: only needs to be proved if not admitted by the other sideo That the testator’s will complied with all the necessary formalities of execution

(WA, ss. 4-9; WSA, ss. 13-19)o That the testator’s will represents the will of a competent, free agent

Note: if the first two elements are proved, a valid will is presumed. The proponent only has to prove the testator was a competent

free agent if there is evidence of suspicious circumstances which, if believed, would negate the belief that the testator made the will of his own volition.

Proponent must call evidence to dispel suspicion. Types:o Observable matters respecting the conduct and condition

of the testatoro Expert opinion evidence as the testator’s competencyo The nature of the dispositions made by the testator

Proof showing that the testator approved of the components of the will does not prove testamentary capacity, rather: “The testator must be sufficiently clear in his understanding and memory to know, on his own, and in a general way (1) the nature and extent of his property, (2) the persons who are the natural objects of his bounty and (3) the testamentary provisions he is making; and he must, moreover, be capable of (4) appreciating these factors in relation to each other, and (5) forming an orderly desire as to the disposition of his property.”

Schwartz v. Schwartz: Facts: testator retired from a partnership business he ran with his brother and passed his

ownership (60%) on to his 3 sons.o One of the sons joined with a cousin and forced the other 2 sons out of the

businesso Testator was unhappy; one of the ousted sons was living with him and made it

difficult for the successful son to see his fathero Originally, the testator’s will divided his property equally between his sons and

their children. He had a stroke after the business debacle, and decided that he wanted to change his will

o His normal lawyer would not act for him, so he used the lawyer that represented the ousted sons during the business dispute

o He disinherited the successful son and gave that son’s children only $1 Issue I: did the testator have testamentary capacity?

o Decision: yes. Even though he had a stroke, he still had testamentary capacity. Issue II: did the testator’s will reflect the will of a competent free agent?

o Decision: yes. The appeal was dismissed Ratio: if in the case of proving a will (i.e., testamentary capacity and due execution), the

evidence called raises a judge’s suspicion that the testator was not acting as a competent free agent, then the proponent must call evidence to dispel that suspicion

o Note: how much dispelling evidence is needed will depend on the circumstances

Re McGuire Estate: Facts: testator thought he was being pursued by the “Red Dragon” Issue: did the testator lack testamentary capacity?

Decision: no Ratio: a strange obsession or peculiar belief will not render a testator without testamentary

capacity, as long as the elements of testamentary capacity are satisfied

Miscellaneous Points: Decided on a case by case basis—the same obsession in two different people does not

automatically mean that each does or does not have testamentary capacity Evidence proving testamentary capacity may be different if the testator has a large estate

with many claimants vs. a small estate with few claimants

2. Mental Incompetence

Godelie v. Pauli (Committee of): Facts: testator granted a power of attorney to his lawyer and then revoked it and gave it to

Godelie Issue: did the testator have capacity to make and/or revoke a power of attorney? Decision: yes. Ratio: the test for capacity to make a power of attorney is different than the test for

testamentary capacity. It involves: o An appreciation that the document authorizes the donee to exercise all the power

in the lifetime of the donoro An appreciation of the all embracing terms of the documento An appreciation of the nature and extent of their property and financial affairs

Re Bradbury Estate: Facts: the testator wrote a holograph will under the influence of drugs and alcohol. Issue: did the testator have testamentary capacity? Decision: no. Ratio: intoxication can—at least temporarily—result in a lack of testamentary capacity

o Suspicious circumstances may be raised by: Circumstances surrounding the preparation of the will Circumstances tending to call into question the capacity of the testator Circumstances tending to show that the free will of the testator was

overborne by acts of coercion or fraud Note: opponent of will must prove undue influence, fraud or duress

o S/he may fail, but the evidence adduced while trying to prove undue influence etc may give rise to a suspicion that the proponent must dispel

o If the proponent cannot dispel the suspicion, there will no longer be a presumption that the will is valid (i.e., the presumption that arises when testamentary capacity/due execution is proved is no longer in effect)

Proponent must dispel suspicion on a balance of probabilities

3. Infancy

Wills Act: Section 9: a minor can make a will if they have a spouse/AIP, are in the military, are a

mariner or have a child (and the will is in favor of the child)

o Otherwise, the minor lacks capacity

Wills and Succession Act: Section 13(2): a minor can make a will if s/he has a spouse/AIP, in the Canadian Forces or

authorized under s. 36o Note: no mention of an unmarried parent, but the child would still take on intestacy

Section 18: how to prove a testator is in the Canadian Forces Section 36: Court can authorize a minor’s will or can revoke a will made by a minor

o Note: need Court consent to make and/or revoke a will If none of these sections are met, Court can still authorize the will under s. 37

o Otherwise, the minor lacks capacity

Differences Between WA and WSA re: Minors’ Wils: Unmarried, minor parent

o WA: allowed to make a will (s. 9)o WSA: not mentioned (but child would take on intestacy)

WSA: Court can authorize a minor’s will (ss. 13(2)(c), 36)) WSA: Court can dispel with formalities for a minor’s will (ss. 36(4), 37)

4. Fraud, Undue Influence and Suspicion

Wilkinson v. Joughin: Facts: husband left bequest to his wife and her daughter. The wife knew she was unable

to marry because her first husband was still alive. Issue: were the gifts void due to fraud? Decision: the gift to the wife was void, but the gift to the daughter was valid Ratio: must be a party to the fraud in order to have your gift invalidated

o A gift to an innocent legatee will be valid

Parfitt v. Lawless: Facts: testatrix left a gift to her priest. Priest/confessor was a status relationship that, at

common law, gave rise to a presumption of undue influence Issue: does a presumption of undue influence apply in the context of wills? Decision: no. Ratio: undue influence cannot be presumed in relation to a will, it must be proved by the

party alleging ito Definition of undue influence in the context of wills “…must amount to force and

coercion destroying free agency; it must not be the influence of affection or attachment…further, there must be proof that the act was obtained by this coercion; by importunity which could not be resisted, that it was done merely for the sake of peace, so that the motive was tantamount to force and fear.”

In other words, it causes the testator to do something that s/he wouldn’t otherwise do, just for the sake of peace

Note: policy reasons for not including wills in the presumption of undue influenceo The beneficiary will have a very difficult time proving the circumstances of the gift

so as to rebut a presumption of undue influence Often, the beneficiary will not even know of the gift’s existence until after

the testator dies

o The testator will often want to leave property to the people with whom they are in those specified relationships with (i.e., husband/wife)

“There is nothing illegal in the parent or husband pressing his claims on a child or wife, and obtaining a recognition of those claims in a legacy, provided that persuasion stop short of coercion, and that the volition of the testator, though biased and impressed by the relation in which he stands to the legatee, is not overborne and subjected to the domination of another.”

Allcard v. Skinner: Leading case on undue influence Discussed status relationships that invoke the presumption of undue influence

o Brother/sister is not on the list

Geffen v. Goodman Estate: Facts: sister had mental problems and needed her mother to take care of her. When the

mother died, she left her house to the daughter.o The brothers were concerned that their sister would sell the house, so they asked

her to create a trust whereby she had a life estate in the property and a limited ability to sell it

o The residue would go to all of the original testator’s grandchildreno The brothers took her to a lawyer, they executed the trust and then they left her

aloneo She sought more advice from that same lawyer later on, and then made a

different will giving the house to only her children Issue I: should the original trust be revoked because of actual, undue influence?

o Decision: no actual undue influence Issue II: is undue influence presumed so that the brothers must rebut it?

o Decision: presumption of undue influence was rebutted (i.e., sister had independent legal advice)

Ratio: the list of status relationships giving rise to a presumption of undue influence that was enunciated in Skinner is not closed—if a relationship is characterized by the ability of one person to dominate the will of the other, then undue influence will be presumed.

o Two step test—the party alleging a presumption of undue influence must establish the following:

Examination of the particular relationship—whether the potential for domination inheres in the nature of the relationship itself

Examination of the nature of the transaction—commercial relationships must show that the plaintiff was unduly disadvantaged by the agreement

Gift situations do not require a demonstration of undue disadvantage—presumption will arise if first part of test is satisfied

Once the test is satisfied, the presumption moves to the defendant to rebut it

Note: case by case analysis—i.e., a brother/sister relationship will not always give rise to a presumption of undue influence

Barry v. Butlin:

Facts: lawyer who prepared the testator’s will was given 25% of the testator’s estate Issue: did the fact that the beneficiary was involved in the preparation of the will make it

necessary for him to establish that the testator knew and approved of the contents of the will?

Decision: the disposition is valid Ratio: two rules in wills cases:

o Proponent must prove will was made of a free and competent testator Prove testamentary and compliance with the formalities of the will—

presumed valid If suspicious circumstances are present, presumption will disappear and

the testator must call evidence dispelling the suspicious circumstanceso Where the will is made at the direction of one who is a beneficiary, suspicious

circumstances will exist that may prove that the will isn’t one of a competent free agent—proponent must dispel suspicion

No requirement for a particular kind of proof… but depending on the relationship, percent of estate given, independent advice, etc. can help dispel the suspicion

“All that can be truly said is, that if a person, whether attorney or not, prepares a will with a legacy to himself, it is, at most, a suspicious circumstance, of more or less weight, according to the facts of each particular case; in some of no weight at all, as in the case suggested, varying according to circumstances; for instance, the quantum of the legacy, and the proportion it bears to the property disposed of, and numerous other contingencies..”

Case by case analysis

Hayward v. Thompson: Facts: wife got breast cancer and sister came to look after her. Wife changed will—

disinherited her husband and child and left everything to her sister Issue: was this a will of a competent free agent? Decision: no—nothing, apart from arrival of sister, to explain why husband and daughter

were disinherited Ratio: the proponent’s failure to dispel suspicion will result in an invalid will Hopp: this will should never have been declared valid—testator didn’t have testamentary

capacity (because of medical condition)o “…the case should, at the very least, have been decided at trial on the ground that

the evidence as a whole entirely failed to remove the suspicion which arises when a person who promotes a will is also a beneficiary. The onus of proof in this case with the evidence that I have reviewed in these reasons was not a light one. The position of Mrs. Thompson in this household, her activity in the preparation of this will, the enfeeblement of the testatrix in her last illness, the secrecy of the preparations, the concealment of material facts from the second solicitor, the speed with which the previous testamentary intentions of the testatrix underwent a complete reversal and the injustice of the exclusion of the natural objects of the bounty of the testatrix, are only some of the suspicious circumstances and there is nothing in the evidence which affords a satisfactory explanation.”

Craig v. Lamoureux:

Facts: testatrix had husband prepare two drafts of her will while she was on her deathbed. The second draft was not executed properly, but the first one was. The first draft entirely benefited the husband.

o Heirs on intestacy opposed will Issue: could the husband dispel the suspicion created by the fact that he was involved in

the preparation of a will that benefited only him? Decision: yes Ratio: the proponent of the will must dispel suspicious circumstances, but there is no

requirement of a particular type of dispelling evidence o The party alleging undue influence must prove it

Riach v. Farris: Facts: the testator made at least 2 earlier wills naming his sisters-in-law as beneficiaries.

However, his last will named a cousin as his sole beneficiaryo His sisters-in-law argued that the dramatic change showed undue influence

Issue: was the will void because of undue influence? Decision: no, undue influence not proven Ratio: it is not the proponent’s responsibility to disprove undue influence—the party

alleging undue influence must prove ito When trying to prove undue influence, the opponent may call evidence that gives

rise to a suspicion that the will was not one of a competent free agent If this occurs, the proponent must dispel the suspicion (even if the

opponent fails to prove undue influence) Dispel suspicion by proving the testator knew what he was doing

—i.e., that he knew and approved of the contents of the will If the proponent cannot dispel the suspicion, the will may still be found

invalid

Maw v. Dickey: Facts: testator (Maw) made his will in favor of his hired hand (Dickey)

o Dictated the terms of the will to Dickey, and then took the dictated notes to a lawyer

o Will challenged by live-in nephew Issue I: is the will valid?

o Decision: yes. Maw had testamentary capacity, the will was duly executed and there were no suspicious circumstances

Ratio: the doctrine of suspicious circumstances need not be limited to the preparation and execution of the will

o If the suspicious circumstances are in connection with the preparation and execution of the will, the onus of disproving the same is on the party propounding the will

o If the suspicious circumstances are not relevant to the preparation and execution of the will, but to the more general aspect of undue influence, then the onus is upon the party attacking the will

Issue II: are Maw’s lawyer’s notes admissible to dispel suspicious circumstances?o Decision: yes, he was hired not only to make the will but to take steps to uphold it

if it was challenged Ratio: it is essential, in order obtain the truth, that the lawyer be allowed to speak.

Common law rule still applies—any writing will be admissible if:

o The declarant is dead;o Recorded in the ordinary course of business (pursuant to a duty to perform and

record the act)o Statement made contemporaneously with the acto Act must have been performed by the declarant himselfo Declarant must not have any motive or interest to misrepresent

“Declarations made by a deceased person, in the ordinary course of business, in the discharge of a specific duty to a third person, contemporaneously with the facts stated, and without motive to misrepresent, are admissible as an exception to the hearsay rule.”

Slater v. Chitrenky: Facts: testator was old and sick. The mother of the sole beneficiary under the will was a

friend of the testatoro The testator was told of her death on the very day the beneficiary (i.e., the son)

brought the will for the testator to signo Prepared at the beneficiary’s instruction and the beneficiary selected the

witnesseso The testator had testamentary capacity and it complied with the formalities

Issue: did the will reflect a competent free agent? Decision: no Ratio: “The onus is on the propounders of the will to prove on a balance of probabilities

that the will was executed by the testator in accordance with the requirements of the Wills Act at a time when he had testamentary capacity. If there are suspicious circumstances, they must also prove, again a balance of probabilities, that the will expresses the real intentions of the testator at the time of its execution. If they are able to do so, then the onus shifts to the party questioning the validity of the will to prove on a balance of probabilities that the will is the product of undue influence.”

o “The extent of the proof required is proportionate to the gravity of the suspicion and the degree of suspicion varies with the circumstances of each case.”

o The standard of proof in all cases is balance of probabilities.

C. Formalities of Execution

Wills Act: Anyone who is 18 years old or older and mentally competent may make a will Section 9(1): no one under 18 may make a will unless they are married or have an

AIP, they are a member of the armed forces or they are a mariner or seamano Section 9(3): Notwithstanding subsection (1), a person who is under 18 with

no spouse or AIP but with children can make a will for the benefit of the children

o Section 9(4): a minor who makes a will under subsections (1) or (3) may also revoke the will

Note: if a will is made while the testator is under 18 and it does not fall within any of the exceptions, it is forever invalid

Section 4-8 set out the formal requirements for making a will:o Section 4: the will must be in writing

o Section 5(a): the will must be signed by the testator at the end or foot of the document, or by somebody else at the direction of the testator

End: where the testator says the end is Foot: at the bottom

o Section 5(b): must be signed by two witnesses who are both present while the testator is signing

o Section 5(c): witnesses must sign in the presence of the testator (but not in the presence of each other)

o Section 6: members of the Canadian Forces on active duty can make wills in anyone’s handwriting—signed by them or by someone else at their direction

o Section 7: holograph will—testator can make a will wholly in his own handwriting and signed by him (won’t need witnesses)

o Section 8(1): signature does not have to be at the end or foot of the document, provided that it is evident from where the signature is placed that the testator intended to give effect to the will

o Section 8(3): a signature won’t give effect to any writing below it

Wills and Succession Act: Section 9: what a will can dispose of Section 13(1): a person over 18 can make, alter or revoke a will if they have the mental

capacity to do so Section 13(2): a person under 18 can make, alter or revoke a will if they have a

spouse/AIP, are an active member of the Canadian Forces or are authorized by the Court under s. 36

o Section 36: court can authorize a minor’s willo Note: section 37 can validate a minor’s will that was not made in compliance with

ss. 13 or 36o Note: leaves out a minor with children but no spouse/AIP

Section 14: to be valid a will must be in writing, must comply with the formalities set out in ss. 15-17 (or with an order made under s. 37) and must contain a signature of the testator

o Signature must make 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

Section 15: formal willo Testator must make or acknowledge his signature in front of two witnesses, both

present at the same timeo Witnesses must sign in presence of testator

Section 16: holograph willo Must be signed by the testator and must be entirely in his own writing

Section 17: military willo A member of the Canadian Forces who is on active duty may make a will by

signing it Section 18 defines active service

Section 19(1): a testator can have an agent sign for him (testator must be present)o Section 19(2): a signature is not invalid solely because it was not placed at the

end of the will—it will be valid if it is apparent that the testator wanted it to give effect to the will

o Section 19(3): any writing below the signature is presumed invalido Section 19(4): the signature does not give effect to anything added to the will after

it was made Section 20: witness to will must have capacity and must not be the person who signed the

will on behalf of the testator:o Section 20(4): A will is not invalid only becauseo (a) a witness to the signature of the testator did not know at the time of witnessing

the signature that the document being signed was a will,o (b) a witness to the signature of the testator was at the time of witnessing the

signature, or afterwards became, incapable of proving the making of the will, oro (c) more than 2 individuals witnessed the signature of the testator

Section 36: the Court may authorize a minor to make a revoke a will, ifo The individual understands the nature and effect of the proposed will, alteration or

revocation and the extent of the property disposed of by it,o The proposed will, alteration or revocation accurately reflects the individual’s

intentions, ando It is reasonable in all the circumstances that the order should be made.

Section 37: The Court may, on application, order that a writing is valid as a will or a revocation of a will, despite that the writing was not made in accordance with section 15, 16 or 17, if the Court is satisfied on clear and convincing evidence that the writing sets out the testamentary intentions of the testator and was intended by the testator to be his or her will or a revocation of his or her will.

Section 38: the Court may validate a non-compliant alteration Section 39: on application, the Court may order that a will be rectified

o Can be used if the testator forgot to sign the will Section 40: the Court can validate a gift made to a witness, as long as the testator

intended to make the gift and there was not any undue influence

Re Chalcraft: Facts: testator meant to sign will, but trailed off before completing her full name Issue I: was this a valid signature?

o Decision: yes Ratio: a signature is any mark which we intend to be our signature (i.e., any mark that we

are happy with)o A testator can set out to make one signature and then change his/her mind, and it

will still be a valid signature if s/he intends it to be Issue II: was the testator mentally present when the witnesses signed the will?

o Decision: yes Ratio: if the deceased was in a state of insensibility at the time when the document was

attested, then it was not an attestation within the provisions of the Wills Act

Re Hornby: Facts: testator signs will in a signature box, at the side of the middle of the page Issue: was the will signed at the end or foot of the document? Decision: yes.

o End = where the testator intends the end to be o Foot = bottom

Ratio: section 8(1) of the Wills Act relaxes the strictness of s. 5—if it is apparent by looking at the will that the testator intended to give effect to the document by placing his/her signature on it, then the will should be declared valid even if the signature is not at the “end or foot”

o However, because of s. 8(3), nothing written below the signature will be effective

Re Wagner Estate: Facts: testator did not sign the will, but he signed the envelope in which the will was placed Issue: did the signature on the envelope give effect to the will? Decision: yes. Ratio: if you can infer by where the testator placed his signature that he intended to give

effect to the will, then the document will be valid Criticism: the envelope signature was not witnessed

Cullen Estate v. Cullen: Facts: witnesses claim that the testatrix did not acknowledge her signature before they

witnessed her will Issue: was the will validly witnessed? Decision: no Ratio: there must be clear evidence of the testator’s acknowledgment and the signature

must be open for the witnesses to see (whether they actually see it or not)

Moore v. King: Facts: testator signs in the presence of one witness and acknowledges in the presence of

the other.o The first witness signed after the testator signed and then acknowledged her

signature in front of the other witness Issue: was the will validly witnessed? Decision: no Ratio: the testator must either sign in the presence of both witnesses or acknowledge in

the presence of both witnesses—cannot do one for each witnesso Furthermore, a witness cannot acknowledge his/her signature

Hindmarsh v. Charlton: Facts: testator signed will in presence of first witness and then acknowledged it in the

presence of the second. When the second witness signed, the first witness corrected the first letter of his signature from a “T” to an “F”

Issue: was this a proper signature so that the testator acknowledged in the presence of both witnesses?

Decision: no Ratio: a mark that is not intended to be a complete signature will not satisfy the test for a

subscribing witness

Re Shewchuk: Facts: it appears that the testator signed in front of one witness, then acknowledged the

signature in front of both witnesses and then both witnesses signedo The facts are not entirely clear

Issue: was the will probably witnessed? Decision: yes

Ratio: in the absence of evidence to the contrary, there is a presumption of due execution if the will appears as if it complied with the formalities

o It is too onerous for the proponent to have to prove execution conclusively in every case

Re Wozciechowiecz Estate: Facts: testator signed in the presence of 2 witnesses but did not see them sign

o He could not have turned over to watch them without help Issue: did the witnesses sign in the testator’s presence? Decision: no Ratio: the testator must be mentally present when the witnesses sign

o In other words, s/he must be able to experience the witnesses sign through his/her sense

Note: the testator doesn’t actually have to see the witnesses sign, but he has to be able to watch them if he chooses to do so

o Note: could have been validated by the Court under WSA, s. 37

Re Blanchard: Facts: testator signed the will twice (between two asterisks)

o Evidence was unclear as to whether he signed twice, each in the presence of one witness, or as to whether he signed twice in front of both witnesses at the same time

Issue: was the will validly executed? Decision: yes Ratio: the onus of proving due execution is on the propounder of the will

o However, a presumption of regularity arises when the document can support an inference that the testator set out to comply with the formalities and, on the face of the document, it appears that s/he did

Need sufficient evidence to rebut the presumption of regularity Standard of proof = balance of probabilities

Re Beauchamp Estate: Facts: man and woman enter into contract that their upcoming marriage will not revoke

their existing wills, but only signed it in the presence of each other and one other witness Issue: were there 2 attesting witnesses?

o Attest = bear witness to the execution of the documento Subscribe = act of signingo Attesting witness = both attest and subscribe

Decision: no Ratio: a witness must intend to sign the will as an attesting witness

o “…the material element which must accompany the subscription to a will to qualify a witness as an attesting witness is the element of intent.”

Chester v. Baston: Ratio: witnesses do not have to attest/subscribe in the presence of each other

D. Competency of Witnesses

Wills Act , ss. 12-15: Section 12: will is not invalid because an attesting witness subsequently becomes

incompetent Section 13(1): if a witness is a beneficiary under the will or is the spouse or AIP of a

beneficiary under the will at the time of attestation, the gift to the beneficiary is void. o However, the person is still able to prove execution.o The gift must be apparent on the face of the will, and it must give a beneficial

devise (i.e., gives the witness the right to dispose of the gift however s/he wants) Section 13(2): if there are more than the number of witnesses required, or if there are no

witnesses required, the attestation by a beneficiary or his/her then spouse or AIP will not render the gift void

Section 14: a creditor or the creditor’s then spouse or AIP can attest the will of the debtor Section 15: the executor of the will can prove its due execution.

Wills and Succession Act , ss. 20-21, 40: Section 20(1): a witness must have mental capacity Section 20(2): the person who signs as the testator’s agent may not be a witness Section 20(3): the executor, a beneficiary or a beneficiary’s then spouse or AIP is able to

prove due execution Section 20(4): a will is not invalid because the witness did not know it was a will, the

witness subsequently became incompetent or there were more than 2 witnesses Section 21(1): a beneficial disposition made by will to one of the witnesses, the person

who signed as the testator’s agent, the person who provided translation services or any of their spouses or AIPs is void

o Section 21(2): exceptions. The gifts will not be void if: It is a charge or remuneration The will did not require a witness There were more than 2 witnesses The Court validates the will under s. 40

o Section 21(3): the spouse or AIP must be the person’s spouse or AIP at the time the will is made

Section 40: a gift made to a witness described in s. 21(1) is not void if the Court so orderso The Court must be satisfied that the testator intended to make this gift to the

individual, and that the individual or his/her spouse or AIP did not exercise any improper influence over the testator

In re Ray’s Will Trusts: Facts: the testator was a nun and left all of her property to whoever was the abbess at the

time of her death. One of the nuns that witnessed her will then became abbess, one year before the death of the testator.

Issue: was the gift to the abbess, who had also acted as a witness, valid? Decision: yes. Ratio: if a person is not named specifically and cannot know at the time of witnessing a will

that s/he would receive a gift under said will, then the fact that s/he acts as a witness does not render his/her gift void

o Furthermore, in this case, the property was not given to the abbess for her own personal use = not a beneficial devise

Re Royce’s Wills Trusts: Facts: the testator made a will benefiting certain trustees of the will. An attesting witness

became a replacement trustee after the testator’s death. Issue: was the gift to the replacement trustee valid, notwithstanding that he had acted as a

witness? Decision: yes. The witness could not tell that he would get a gift under the will just by

reading it. Ratio: it must be apparent on the face of the will, at the date of attestation, that an attesting

witness will take a gift upon the death of the testator

E. Incorporation by Reference

A will must be in writing [WA, s. 4]o Therefore, any incorporation must also be in writing

Four requirements of incorporation:o It is clear that the testator intended to make the document part of the willo There is a description of the document sufficient to distinguish it from all other like

documentso The reference must express that the document is in existence, ando The document must actually be in existence

Allen v. Maddock: Facts: after making a will, a testator made a codicil “to her last will”

o The will was actually invalid, but the codicil was valid Issue: was the will validly incorporated into the codicil by reference?

o Specifically, was there a sufficient description of the document that was to be incorporated?

Decision: yes. Even though the testator referred to the paper as her “last will” when it was not indeed a valid will, it was sufficiently described to enable the Court to determine what document she intended to incorporate.

o The other three requirements were satisfied (intending to incorporate it, saying it existed and its actual existence)

Ratio: the description of the document to be incorporated must be detailed enough to enable the Court to determine what exact document is being referred to

o “…it is sufficient that the description should be such as to enable the Court, when the evidence is produced, to say what is the instrument intended.”

In the Goods of Lady Truro: Facts: the testator meant to incorporate an inventory with her will, but the inventory was

not in existence at the time the will was made. However, a codicil was made after the inventory that had the effect of republishing the original will, as at the date of the codicil.

Issue: did the republication by codicil validly incorporate the inventory into the will? Decision: yes Ratio: where the will, if treated as executed on the date of the codicil, and read as

speaking at that date, contains language which would operate as an incorporation of the document to which it refers, testamentary effect may be given to such document.

o Note: a codicil is a testamentary document adding to or subtracting from a will The testator must confirm the will in his codicil in order for effective

republication to occur (i.e., requires a statement in the codicil that the unchanged parts of the will are confirmed)

In the Goods of Smart: Facts: testator referred to a memorandum using future language. Therefore, it did not

satisfy the third requirement of incorporation; namely, that the testator refer to the document as already existing.

o The testator then made a codicil that effectively republished the will as of the date of the codicil

Issue: did the will’s republication by codicil create a valid incorporation by reference? Decision: no. The wording had not changed and the will still referred to the memorandum

as if it were not yet in existence. Ratio: if the terms of the reference indicate a document of future character, there is no

incorporation

F. Holograph Wills

Re Austin: Facts: stationer’s will that included both typed and handwritten words was not properly

attested Issue: was it a valid holograph will, notwithstanding that it was not wholly in the testator’s

own handwriting? Decision: yes, because the handwritten words alone could constitute a valid holograph will

o In this case, the typed words were required to determine who was named as the executor, but an executor is not required for a valid will

Ratio: if the handwritten parts can form a valid holograph will, the document will be construed as a valid holograph will and the typed words will be ignored

o Even if the testator intended the typed words to form part of his/her will—as long as the handwritten words contain the essential requirements and are sufficient to show the testator’s intention

The typed words must be superfluous—i.e., non-essential to a valid willo Essentials to a valid will include:

Disposition of assets Intent to dispose of assets upon death (a.k.a. testamentary intent) Signature

Dissent: a holograph will must be wholly in the testator’s handwriting. The Court cannot exclude typed words that the testator intended to include in his/her will

o The appointment of an executor was not superfluous

Re Philip Estate: Facts: stationer’s will that included both typed and handwritten words was not properly

attestedo The blanks were not filled, but there was one long, handwritten portion after the

typed words Issue: was it a valid holograph will, notwithstanding that it was not wholly in the testator’s

own handwriting? Decision: yes, though MBCA declines to follow Re Austin

Ratio: holograph wills can be valid when not wholly in the handwriting of the testator, only if the testator did not intend the other words to form part of the document

Hopp: the word “to” does not specify a testamentary intention which, according to Re Austin, is an essential requirement of a will

o Needed to incorporate the typed “unto” = cannot be construed as a holograph will

Re Forest Estate: Facts: invalid execution of a mixed document Issue: was it a valid holograph will, notwithstanding that it was not wholly in the testator’s

own handwriting? Decision: no, because the handwritten portions did not contain words of disposition

o “To” is not sufficient Ratio: the essential elements for a valid will must be found wholly in the handwritten parts

of the document (words of disposition + intent to dispose of property on death + signature)

Re Moir: Facts: a holograph will was written on both sides of one sheet of paper, and was signed by

the testator at the bottom of the first page Issue: did the signature give effect to what was written on the back?

o Note: WA does not require that holograph wills be signed at the end or foot, but s. 8 applies

Decision: yes. It was placed in the only available spot. Ratio: the placement of the testator’s signature on a holograph will must show his or her

intention to give effect to the will

Currie v. Potter et al: Facts: alterations were made to a holograph will, but there was no evidence as to whether

they were made before or after the will was signed.o There was, however, a residuary clause added after the signature (with a PS)o An expert testified that all the writing in the document was written at the same

time, in the same ink and by the same person Issue: were the alterations made before the signature was affixed so that the alterations

form part of the will? Decision: yes Ratio: there is a rebuttable presumption for holograph wills that any alterations were made

before the will was signed and are, therefore, valido Note: WSA, s. 22: alterations are presumed to be made after the will was made,

and non-compliant alterations can be validated by the Court (WSA, s. 38)o Note: residual clause would not be valid because it appears beneath the signature

(s. 8(3)) However, the wording of the section at the time the case was decided

allowed the residual clause to stand

Re Swords: Facts: while the testator was in the hospital for surgery, he wrote a series of letters

indicating how he wanted his property disposed of upon his death Issue: do these letters constitute a valid holograph will?

o Specifically, do they demonstrate a testamentary intention? Decision: yes

Ratio: if the testator exhibits a fixed and binding determination to dispose of his property in a certain way upon his death, he has the requisite testamentary intention

o It does not matter if the testator is aware that he is making a will Issue: do these letters constitute a holograph will that will only take effect if the testator is

to die from the surgeries?o In other words, was the will contingent upon the testator dying from the surgery?

Decision: no Ratio: in order for testamentary intention to be contingent, it must be clear that a specific

condition is required in order for the gift to take effecto It is not sufficient that the condition was merely the motivation for the making of the

will

Re Gray Estate: Facts: the testator wrote a letter to her lawyer outlining what she wanted her will to say, but

promised to come into his office to finalize the document. She died before she was able to visit her lawyer.

Issue: was the letter to her lawyer a valid holograph will? Decision: no, the letter was preliminary to the will Ratio: a holographic paper is not testamentary unless it contains a deliberate or fixed and

final expression of intention as to the disposal of property upon deatho Onus on proponent to show this intention

Re Davis: Facts: testator had a formal will with a holograph codicil that made certain changes to the

first document Issue: in light of the process for alteration set out by statute, can there be a holograph

codicil to a formal will, and vice versa? Decision: yes Ratio: alterations by codicil are not changes made in the will. Therefore, it is perfectly

acceptable to execute a holograph codicil for a formal will, and vice versa

CHAPTER TWO: REVOKING A WILL

A. Revocation

Destruction is not the same as revocationo May still be able to prove contents of the willo If so, will is still existing even if document was destroyed

Wills Act: Section 16: a will is revoked by:

o (a) the marriage of the testator, subject to section 17,o (a.1) the testator’s entering into an adult interdependent partner agreement,

subject to section 17.1,o (b) another will made in accordance with this Act,

o (c) a writing declaring an intention to revoke and made in accordance with the provisions of this Act governing the making of a will, or

o (d) burning, tearing or otherwise destroying it by the testator or by some person in the testator’s presence and by the testator’s direction with the intention of revoking it

Section 17: the testator’s marriage will not revoke his or her will if:o The will was made in contemplation of the marriage; or,

Must describe the very marriage celebratedo The will is made in exercise of a power of appointment that would not benefit the

testator’s family, executor or administrator if the testator did not exercise the power of appointment

Power of appointment = given by someone who owns property to allow another to dispose of that property, either in life or by will

If a will exercises a power of appointment, the testator’s subsequent marriage will not affect that part of the will, as long as the gift over does not benefit the testator’s family or estate if the power is not exercised

Section 17.1: same as s. 17, but for AIP agreements

Wills and Succession Act: Section 23(1): A will or part of a will may be revoked only by

o (a) the testator making another will,o (b) the testator making, in accordance with the provisions of this Part governing

the making of a will, a writing that declares an intention to revoke the earlier will,o (c) the testator burning, tearing or otherwise destroying the will with the intention of

revoking it, oro (d) the testator having another individual burn, tear or otherwise destroy the will in

the testator’s presence, at the direction of the testator given with the intention of revoking the will.

Section 23(2): marriage or entering into an AIR does not revoke a will Section 23(3): the revocation of a will does not revive any earlier will Section 25(1): if a testator’s marriage is void or terminated by divorce, or the testator

ceases to be an AIP, then:o (a) any gift in the will providing a beneficial devise to the former spouse or AIP is

deemed revoked;o (b) any general or special power of appointment to the former spouse or AIP is

deemed revoked; and,o (c) the appointment of the former spouse or AIP as executor, trustee or guardian

of a child under the Family Law Act is deemed revoked. Note: the former spouse or AIP is deemed to have predeceased the

testator Section 25(2): section 25 does not apply to a former AIP who is related to the testator by

blood or adoption

1. By Marriage

Sallis v. Jones: Facts: the testator made a will that stated it had been made “in contemplation of marriage”

o The testator had not even proposed to his eventual wife Issue: was the testator’s will revoked upon his subsequent marriage?

Decision: yes Ratio: the will must be made in contemplation of the marriage, to a particular person.

o It is not sufficient to contemplate marriage in general

In re Coleman: Facts: the testator’s will gave specific gifts to his “fiancée”. She had become his wife by

the time he died. Issue: did the marriage revoke the testator’s will, or did the word fiancée demonstrate that

the will had been made in contemplation of marriage? Decision: will was revoked Ratio: the particular gifts to the woman had been made in contemplation of the marriage,

but the entire will must be made with the contemplation of the marriage o The word fiancée is a sufficient expression of the contemplation of the marriage,

but an “expression in the will which merely shows that parts of the will were made in contemplation of the marriage celebrated will not suffice unless those parts amount at least to substantially the whole of the beneficial dispositions made by the will.”

Note: the contemplation must be found within the will itself Note: three types of contemplation cases:

o General contemplation cases [Sallis v. Jones] Not sufficient to save the will from being revoked upon the testator’s

marriageo The will refers to the testator’s fiancée [In re Coleman]

The language shows an intention of changing the status of the relationship that existed at the time the will was made. This could constitute a sufficient declaration of a contemplation of the marriage if everything was given to the fiancée

Hopp disagrees—should need an explicit declarationo The beneficiary was described as the testator’s wife in the will, but she was not

legally his wife Does not connote a future intention to change the relationship into one of

marriage, therefore it does not save the will from revocation if the subsequent marriage does occur

In re Paul: Facts: a woman exercised a power of appointment in her will in favor of her son, and then

subsequently married. Issue: did the testator’s marriage revoke the power of appointment? Decision: no Ratio: as long as the gift over, if the power of appointment is not exercised, does not revert

to the testator’s family or estate, a valid exercise by will of a power of appointment will not be revoked by the marriage of the testator

2. By Another Will or Codicil

Wills Act, s. 16(1)(b) Wills and Succession Act, s. 23(1)(a) Note: in both cases, the will may be revoked by the second will

Lemage v. Goodban: Facts: the testator made a will that left everything to his sister, and then executed a second

document dealing with only one piece of property that he had just acquired. It was also left to his sister.

o Will was challenged by those who would take the testator’s estate on intestacy Issue: did the making of the second document automatically revoke the first? Decision: no. A person can only have one will, but that will can be made up of more than

one document. o The two testamentary documents were consistent with each other and, taken

together, formed the entire valid will of the testator Ratio: a will is only revoked or partially revoked by the making of another testamentary

document if the two are inconsistent with each other and cannot stand together, or if there is an intention to revoke the first document by the making of the second document

o Note: can be inferred intent (armchair evidence)o “The mere fact of making a subsequent testamentary paper, does not work a total

revocation of a prior one, unless the latter expressly, or in effect, revoke the former, or the two be incapable of standing together.”

o “And if a subsequent testamentary paper be partly inconsistent with one of an earlier date, then such latter instrument will revoke the former, as to those parts only.”

Jenner v. Ffinch: Facts: testatrix made a will, a writing revoking the will and then a second will. However,

the writing revoking the first will was invalid. Issue: did the second will revoke the first? Decision: yes. Invalid execution of the intervening writing was extrinsic evidence showing

the testator’s intention to revoke the first willo So did the fact that, taken together, the testatrix would have attempted to dispose

of double the property she actually had Ratio: the intention of the testator governs, and the Court can use extrinsic evidence to

determine the testator’s intentiono Note: no express words are necessary—revocation by implication is sufficient

3. By Writing Declaring Intention to Revoke

Wills Act, s. 16(c) Wills and Succession Act, s. 23(1)(b)

In the Goods of Durance: Facts: the testator was dying in Canada, but his will was being kept in England. He wrote

a letter to his brother asking him to burn the will. Issue: was the letter a writing declaring an intention to revoke the will? Decision: yes (note: complied with the Act because it was holographic) Ratio: any writing will be sufficient to revoke a will as long as it shows a clear intention to

revoke the will

4. By Act to the Instrument

Wills Act, s. 16(d) Wills and Succession Act, s. 23(1)(c), (d) Requires an act of destruction + an intention to revoke

o Usual question = was the act of destruction sufficient (depends on what the testator or his agent set out to do)

Bibb d Mole and Wife v. Thomas: Facts: the testator tried to rip and burn his will, but it was saved by his servant

(unbeknownst to him) Issue: was the will revoked, even though it still physically existed? Decision: yes

o Slightest act of destruction + intention to revoke = revocation Ratio: total destruction of the will is unnecessary to accomplish revocation, but the act that

was done must be the very act of destruction that the testator set out to perform

Doe d Perkes v. Perkes: Facts: the testator attempted to destroy his will completely, but he was restrained from

doing so and then did not try againo However, the will was torn into 4 pieces

Issue: did the tears revoke the will? Decision: no Ratio: the act of destruction that the testator set out to do must be fully completed before

revocation will be accomplished

In re Beattie Estate: Facts: after the death of the testator, his wife found a partially torn will. However, the

testator had been in a mental institution for some years prior to his death and it could not be determined whether the tears had been made while he still had testamentary capacity.

Issue: had the will been revoked? In other words, did the testator have the necessary intention to revoke his will?

Decision: no, intention had not been proven Ratio: the onus of proving revocation is on the party alleging it Note: intention relates to the disposition of property, not to the form of the will

5. By Loss of the Will

Sugden v. Lord St. Leonards: Facts: testator kept his will in a locked box where a lot of people had access to it. He

revised his will frequently and often bragged about its contents. The will could not be found in its spot when he died.

Issue: had the will been revoked? In other words, did the attempt to rebut the following presumption fail?

o Rebuttable presumption: when the will was in the custody of the testator and cannot be found after his or her death, then he or she destroyed the will with the intention of revoking it

Decision: no, the presumption is rebutted

o Testator was proud of the fact that he had a will and probably would not have revoked it

Pre-death statements used as evidence because they were made during his lifetime when he had no reason to lie

o There was a short time period within which destruction could have occurredo The will was not kept in a secure place

Ratio: rebuttable presumption that a lost will has been destroyed for the purpose of revoking it

o The presumption will be more or less strong according to the character of the custody which the testator had over the will

Note: once presumption is rebutted, the proponent of the will still has to satisfy:o Testamentary capacityo Due executiono The testator knew and approved of the will’s contents

Re Behie’s Estate: Facts: the testatrix kept her will in her piano bench, which everyone knew. After her death,

the will was missing. Issue: did the presumption that the lost will had been destroyed for the purpose of

revocation hold? Decision: no. It appears that the will was stolen, not that the testatrix tried to revoke it. Ratio: evidence to rebut the presumption must be compelling

6. By Other Acts to the Instrument

Wills Act, s. 19: alterations made within a will must be done in the same way that will was made. However, if the original will is no longer apparent (i.e., if you cannot use see through the alternation with the use of an aided eye) the alteration must stand.

Wills and Succession Act, s. 22: writings on a will are presumed to be made after the will is made. Alterations must be done in the same way that the will was made, but the Court can validate non-compliant alternations under s. 38

Cheese v. Lovejoy: Facts: the testator drew lines through his will and wrote on the back that it was revoked.

He kept the will and it was found in his possession when he died. Issue: had the will been revoked? Decision: no Ratio: in order for a revocation to be successful, the writing/acts completed by the testator

must comply with the Act (i.e., amendments must be done in the same way that the will was made, unless it makes something no longer apparent on the face of the will)

In the Goods of Sykes: Facts: A will was followed by a codicil. There were alterations in the will and both the will

and codicil were presented to probate Issue: were the alterations valid? Decision: Ratio: in formal wills there’s a rebuttable presumption that every alteration in a formal will is

made after is execution

o Onus on party asserting that alterations were made before execution to prove it Note: codicil republishes a will – if it could be shown that codicil was executed after the

changes, then it would save the will

In the Goods of Horsford: Facts: testator covered up amounts of original gifts with pieces of paper and wrote new

amounts in Issue: was this a valid alteration? Decision: yes. Though it didn’t comply with the way the will was made, it rendered the

original gift no longer apparent Ratio: if you cannot make out what the original will said with the use of an aided eye, then

the alteration has made the will no longer apparent and the alternation will stand

Ffinch v. Combe: Facts: testatrix pasted slips of paper over original legacies in her will. The alterations were

not duly attested, and it was still possible to see what was underneath the paper Issue: did the papers alter the will? Decision: no, the original legacies were restored Ratio: the use of an aided eye to decipher the alterations is allowed, “…but it is not

allowable to resort to any physical interference with the document so as to render clearer what may have been written upon it”

In the Goods of Itter: Facts: testatrix pasted pieces of paper over original legacies. It was impossible to read

what was written underneath the slips without the use of an infrared camera Issue: can an infrared camera be used to decipher the will? Decision: no Ratio: Court cannot restore original legacy if, in order to decipher what the original legacy

was, the proponent must resort to the creation of an entirely new document (i.e., the photograph)

Note: uses dependant relative revocation to restore original legacies—alterations were conditional on the Court giving effect to the new amounts

o Because the Court couldn’t give effect to the new amounts, the alterations were not successful. The Court could therefore remove the slips and read what existed underneath.

Re Cottrell: Facts: certain holographic changes were made to a formal will. Issue: was this a valid alteration? Decision: no, original will restored Ratio: under the Act, changes to a formal will must be made formally, and vice versa

o Though, Court can now validate this under WSA (probably need convincing evidence of testator’s intent)

Note: holograph codicil can be used to change a formal will. Section 19 only applies to changes within the document

7. Dependent Relative Revocation

Conditional revocation—the revocation is not accomplished if the condition is not fulfilled

o Able to refer back to the original document

Onions v. Tyrer: Facts: testator executed a second document without the requisite formalities, and then told

his wife to destroy his old will (she tore it slightly) Issue: was the first will revoked? Decision: no. The validity of the second document was the condition on which the first will

was revoked. Since the second document was invalid, the first will remained intact Ratio: the condition of revocation must be fulfilled before revocation will be accomplished

Powell v. Powell: Facts: testator made a second will revoking his first, and then ripped up the second will

with the intention of reviving the first Issue: was the first will revived or, was the second will revoked?

o Note: Wills Act, s. 20; Wills and Succession Act, s. 24: requires revival by re-execution or by codicil showing an intention to revive (not sufficient for codicil to refer to earlier, must show intention to revive earlier will)

Decision: the first will was not revived, but the second will was still valido The revival of the first will was the condition upon which the second will was

revoked. Since the condition was not fulfilled, the revocation was unsuccessful Ratio: acts of destruction are equivocal, must look to testator’s intention to determine that

revocation was intendedo Here, intention was conditional on revival of first will

Dixon v. The Solicitor to the Treasury: Facts: testator cut the signature off his first will, but never got around to making a new will Issue: was the first will revoked? Decision: no, revocation was conditional on successfully making a new will

Ward v. Van der Loeff: Facts: testator had a will that gave a gift to a specific person, and then made a codicil that

gave the same gift to a different person. Issue: did the codicil gift revoke the gift in the will? Decision: no Ratio: if the two gifts are entirely inconsistent with each other they may be revoked. If the

gift is of the same type, it may not be revoked. It depends upon the testator’s intention.

Campbell v. French: Facts: the testator executed a codicil revoking gifts to certain beneficiaries that he thought

were dead Issue: were the gifts revoked? Decision: no, the revocation was conditional on the beneficiaries being dead Ratio: to invoke dependent relative revocation, it must be shown that there was an error

and, but for the error, the testator would not have made the change

Gifford v. Dyer: Facts: testator thought her son was dead so she did not leave him anything in her will Issue: was this an error that made the will invalid? Decision: no, she wouldn’t have left him anything even if she knew he was alive

Ratio: error must affect the will

In re Churchill: Facts: testator gave his coin collection to a university in his will, then decided to give it as

an inter vivos gift.o He exchanged letters with the university about the gift, and then he made a codicil

revoking the gift in the willo The testator thought he had disposed of the coins during his lifetime, but part of

the collection had not been delivered (delivery is a condition of an inter vivos gift) Issue: was revocation of the gift in the will contingent upon the success of the inter vivos

gift? Decision: no. There was nothing in the codicil to show that a mistake had been made. Ratio: the mistake must be apparent on the face of the will

B. REVIVAL AND REPUBLICATION

1. Revival

Wills Act: Section 20: (1) A will or part of a will that has been in any manner revoked is revived only

o (a) by re-execution of it with the required formalities, if any, oro (b) by a codicil that has been made in accordance with this Act that shows an

intention to give effect to the will or part that was revoked. Not enough just to refer to earlier will

(2) Except when a contrary intention is shown, if a will which has been partly revoked and afterward wholly revoked, is revived, the revival does not extend to the part that was revoked before the revocation of the whole.

o i.e., will revoked by destruction cannot be revived at all

Wills and Succession Act: Section 24: (1) A will or part of a will that has been revoked in any manner may only be

revived by making a new will, whether by re-execution or otherwise, in accordance with the provisions of this Part governing the making of a will and in a manner that shows an intention to give effect to the will or part that was earlier revoked.

o (2) A will or part of a will that is revived by re-execution is deemed to be made at the time of its re-execution

In the Goods of Steele: Facts: codicil referred to last will, which had been revoked Issue: can a codicil revive a will simply by referring to it? Decision: no, need a statement of intention to revive Ratio: if there is any ambiguity, the Court can look to extrinsic evidence (i.e., armchair rule)

o Destroyed wills cannot be revoked

Goldie v. Adam: Facts: a testator made a will and 3 codicils, and then made a will revoking all of them.

Then he wanted to change the second will, but he dealt with a different lawyer who did not know about the second will.

o The lawyer made a 4th codicil referring to the first will

Issue: was the first will revived by the 4th codicil? Decision no: Ratio: extrinsic evidence allowed to show that the testator did not have an intention to

revive the first will

2. Republication

In re Reeves: Facts: testator gave his daughter rights in his present lease. Lease expired and new lease

negotiated. Then a codicil was made that had the effect of republishing the will Issue: was the daughter entitled to the new lease? Decision: yes, the new lease existed at the date of republication Ratio: if codicil republishes will, the new will speaks from the date of the codicil

Gurney v. Gurney: Facts: beneficiary under will attested codicil that republished will Issue: did his attestation to the codicil render his gift under the will void? Decision: no Ratio: if the beneficiary can point to one document under which he could take that he did

not attest, this is sufficient to render the gift valid

In re Trotter: Facts: a beneficiary was a witness to the will, but not to the codicil that republished the will Issue: was the beneficiary’s gift void because of his attestation? Decision: no Ratio: if the beneficiary can point to one document under which he could take that he did

not attest, this is sufficient to render the gift valid

CHAPTER THREE: ALTERATION OF A WILL BY EVENTS DURING THE TESTATOR’S LIFETIME

A. Ademption and Abatement

Wills Act: Section 21(1): if the testator deals with property during his lifetime that he has already

disposed of by will, the beneficiary for that specific property will take whatever interest the testator still has in the property at the time of his death

Section 21(2): if a dealing with the testator’s property done after the will is made creates a right or chose in action, that right or chose in action passes to the beneficiary who was originally entitled to the property dealt with (willdealing = beneficiary gets chose in action)

o Subject to a contrary intention

o Note: once the chose in action disappears, the gift adeemso Note: there is a notional conversion at the time that the contract is made

It does not matter if the testator still has the property at the time of his death. If the contract has been made, the beneficiary gets the chose in action, not the actual property

Section 22: a will speaks as if it were made immediately before the death of the testatoro Subject to a contrary intention

Wills and Succession Act: Section 10: if the testator deals with property that he has already disposed of by will, the

beneficiary will take whatever interest the testator still has in that property at the date of death

o Section 1(1)(i)(iv): property includes a future or contingent right to be paid money

Together, these sections mimic s. 21(2) of the Wills Act Section 31: if testator leaves property to “issue” or “descendants”, the property must be

distributed among them as if the testator had died intestate, without a spouse or AIPo Subject to a contrary intention

Ademption and Abatement; Specific, General and Demonstrative Legacies: Specific legacy = a gift of a particular thing that is identified and distinguished from all other

like things General legacy = money, or something “like” money.

o Comes from any source within the estate Demonstrative legacy = always involves a gift of money, to be paid out from a particular

fund or source (i.e., beneficiary gets “first crack” at the source)o If the funds within the source are too low to satisfy the demonstrative legacy, that

gift fails.o However, the beneficiary still has rights comparable to those who had been given

a gift of money (i.e., demonstrative legacy becomes general legacy) Ademption = when the specific thing which the will designated, or a particular person, no

longer exists or is not available at the testator’s deatho Refers only to specific giftso Can have partial ademption

Abatement = the remains of the testator’s estate after his debts have been paid is not sufficient to provide for all the devises stipulated by the will

o Refers to general and demonstrative giftso Can have partial abatement

General rule = type of gift depends on testator’s intention

In re Willcocks: Facts: testator gifted stocks to her parents. The will stipulated the exact amounts of the

stocks at the date she made her will. Thereafter, she sold the stocks. Issue: were the stocks a specific gift?

o In other words, did the gift adeem upon disposition of the stock? Decision: no. Ratio: the type of gift depends on the intention of the testator. The fact that the stocks

were described in an exact amount was not enough to show that the testator intended to overcome the general rule that a gift of a stock is a general gift

o A gift of stock is actually a gift of money in the same amount that the stock is worth = general gift

Re Puczka Estate: Facts: testator left any money that he had on deposit at CIBC to certain Russian relatives,

with a gift over to certain people if the Russian relatives could not be locatedo Thereafter, he moved his account from CIBC to RBC

Issue: was the gift a specific gift of the debt owed by CIBC to the testator or was the gift a specific gift of the fund of money?

o If the gift was a specific gift of the debt owed by CIBC to the testator, the gift adeemed when the testator changed banks

o If the gift was a specific gift of the fund of money then it is valid because it can be traced to RBC

Decision: specific gift of the fund of moneyo Words like “cash” and “money” demonstrate the testator is talking about the fund,

not the debt Ratio: the type of gift depends on the testator’s intention. Further, “when a gift is made of

a fund, or of the proceeds of the fund however invested, there is no ademption by an alteration in the nature of the fund, provided the proceeds of the fund can be traced.”

Note: cannot be a general gift because general gifts require a specification of the amount involved

In re Sikes: Facts: the testator bequeathed “my piano” to her friend, then disposed of it and acquired a

new one Issue: did the specific gift of the piano adeem? Decision: yes. The words “my piano” referred to the piano that the testator had at the time

the will was made (contrary intention)o Since that piano had been disposed of, the gift adeemed

Ratio: unless a contrary intention can be found on the face of the will, a will speaks as if it were made immediately before the death of the testator

Re Rodd Estate: Facts: the testator gifted the proceeds from the sale of land to her children. The land was

sold during the testator’s lifetime and the proceeds were deposited in a bank account.o $30 000 was used to purchase a specific bond, but thereafter it was impossible to

trace the account so as to say that the money in the account formed part of the proceeds of sale

Issue: had the gift of the proceeds adeemed? Decision: the gift had partially adeemed. This was not a demonstrative gift, but a specific

gift of a specific fund (the proceeds of the house).o The proceeds could only be partially traced, into the bond. Therefore, the bond

shall be divided as the will instructed, and the rest of the money in the fund adeemed

o The balance of the fund formed part of the residue Ratio: the testator’s intention is paramount, but the Courts will lean strongly away from

finding a specific legacy o If there is any doubt, the Court will find that the legacy is not specific

Church v. Hill: Facts: testator left a house to his daughter, and then sold the house during his lifetime.

o At his death, he was still owed part of the purchase price Issue: was the daughter entitled to the part of the purchase price still owed? Decision: no (s. 21(2) had not been enacted yet). There was a notional conversion on the

date that the contract was made, so the gift adeemed as of that date. Ratio: once a specific gift is sold, the gift adeems

In re Carrington: Facts: testator gifted certain shares in his will, and then made a contract that granted

someone else an option to purchase the shares within a year after the testator’s death Issue: has the gift adeemed? Decision: the gift only adeems if the option is exercised. The conversion of the shares

does not happen until the option is exercised, so the gift will not adeem until that date.o If the option is not exercised within the specified time period, the beneficiary will

get the gift Even until the option is exercised, the beneficiary gets the benefit of the

shares Ratio: there is no notional conversion at the date the contract was made—the

conversion/ademption does not occur until the date that the option is exercised Note: no s. 21(2) at the date of this case—s. 21(2) would change this

o There is a notional conversion at the date of the contract

Re Sutherland: Facts: the testator gifted her partnership interest to her partner. After she made her will,

she agreed to sell her partnership interest to her partner.o The partner still owed her part of the purchase price at the date of her death

Issue: did the specific gift of the partnership interest adeem at the date of the disposition? Decision: no. Because of s. 21(2), the partner received the benefit of the lady’s chose in

action and was entitled to receive the unpaid purchase price.o But, because he owed it to himself, he didn’t have to pay

Ratio: s. 21(2) allows a beneficiary of a specific gift to receive the benefit of the chose in action relating to that specific gift that the testator had at the time of his or her death

B. Lapse

Wills Act: Section 23: if a testamentary gift lapses because the beneficiary predeceased the testator

or because the gift is void or contrary to law, the lapsed gift forms part of the residue of the testator’s estate

o Subject to contrary intentiono Note: if a residuary gift lapses, it is distributed as if an intestacy occurred

Section 34: unless there’s contrary intention, if the beneficiary is a child or other issue or a sibling of the testator, AND if the beneficiary dies leaving surviving issue, the gift is given to those entitled to take on the deceased beneficiary’s intestacy

o Spouse or AIP of deceased beneficiary gets preferred shareo Applies to wills made 1 July 1960-1 June 1968

Section 35: unless there’s contrary intention, if the beneficiary is a child or other issue or a sibling of the testator, AND if the beneficiary dies leaving surviving issue, the gift is given to those entitled to take on the deceased beneficiary’s intestacy

o Spouse or AIP of deceased beneficiary does not get preferred shareo Applies to wills made after 1 June 1968

Wills and Succession Act: Section 32(1): if the beneficiary dies before the testator, the gift originally made to the

beneficiary will go to:o The alternate beneficiary,o The descendants of the beneficiary who would have been entitled to take upon the

beneficiary’s intestacy (note: will be distributed as if the beneficiary did not have a spouse or AIP, and the beneficiary must also be a descendant of the testator)

o The residual beneficiaries, in proportion to their interest, oro Those who would be entitled to take upon the testator’s intestacy

Section 33(1): if the gift is void or contrary to law, it will be distributed to:o The alternate beneficiary,o The descendants of the beneficiary who would have been entitled to take upon the

beneficiary’s intestacy (note: will be distributed as if the beneficiary did not have a spouse or AIP, and the beneficiary must also be a descendant of the testator)

o The residual beneficiaries, in proportion to their interest, oro Those who would be entitled to take upon the testator’s intestacy

Section 33(2): the intended beneficiary is deemed to have predeceased the testator

Re Cameron: Facts: testator left money in his will to be paid yearly to his son, during his son’s lifetime

o If the son died, his wife would get the yearly allowanceo After the testator died, the son’s wife died and the son remarried.o Then the son died

Issue: was the second wife—who was not around during the life of testator—entitled to the yearly allowance under the testator’s will, or did the gift lapse because the son’s first wife had already died?

Decision: the gift lapsed.o The wife referred to is the wife who was around at the time the will was made

(contrary intention) Ratio: the will speaks from immediately before the testator’s death, unless there is a

contrary intention (s. 22)o “It is settled that if in a will you find a gift by the testator to the ‘wife’ of a person,

and that person has at the time a wife living and acknowledged by the testator, the testator prima facie intends to refer to the existing wife, and not to any subsequent wife that person may have.”

Re Trustee Act; Re Stuart Estate: Facts: the testator named 13 residuary legatees, but one predeceased him Issue: does s. 23 of the Wills Act apply to a lapsed residuary gift? Decision: no Ratio: lapsed residuary gifts are distributed as if the testator had died intestate Note: WSA, s. 32 can be used for lapsed residuary gifts!

In re Greenwood: Facts: testator made a gift in her will, and also provided for what should happen to the gift

if the intended beneficiary should predecease her? Issue: is this allowed? Decision: yes Ratio: it is always possible for a testator to make provision for what should happen if a

beneficiary predeceases him/hero “…the consequences of a lapse can be avoided by the substitution of some other

legatee to take the legacy if the event which occasions the lapse occurs.”

Inkster v. Inskter Estate: Facts: all the gifts in a lady’s will named alternate beneficiaries, except for two.

o A gift made to her nephew did not name an alternate beneficiaryo The nephew predeceased her

Issue: did the gift to the nephew lapse? Decision: no. Armchair evidence was used to show that the nephew was like a son to the

testator.o Enough to establish a contrary intention. Therefore, gift did not lapse and,

instead, went to those entitled to take on the nephew’s death Ratio: it is possible for a contrary intention to appear without the testator naming an

alternate beneficiary.o Armchair evidence can be used to determine whether there is a contrary intention

Note: armchair evidence = used to determine language etc used in the testator’s will

CHAPTER FOUR: ALTERATION OF A WILL BY OPERATION OF LAW

A. Dependents Relief Legislation

See above for details of the Dependants Relief Act and the Wills and Succession Act, ss. 72-108

Note: if a person disposes of his or her property before death, dependents relief legislation cannot be used with respect to that property upon his or her death

o Exceptions: contracts made without valid consideration A court order under dependents relief legislation effectively rewrites the testator’s will

Walker v. McDermott: Facts: the testator left his entire estate to his wife and made no provision to his daughter.

His daughter had been independently employed for years preceding his death, and she was married to a man who had a good career.

Issue: was the daughter entitled to dependents relief order for her proper maintenance and support?

Decision: no. Ratio: “proper maintenance and support” must be determined with reference to a variety of

circumstances. It is not limited to bare necessities of existence. Factors to consider include:

o Standard of living parties are accustomed to

o Size of estateo Claims of other dependants

“For the purpose of arriving at a conclusion, the court on whom devolves the responsibility of giving effect to the statute, would naturally proceed from the point of view of the judicious father of a family seeking to discharge both his marital and parental duty…”

Alberta (Public Trustee) v. Buchholz Estate: Facts: the testator left his entire estate to his wife, directing her to use whatever she saw fit

for the support of their children. At the date of the testator’s death, 2 of his 5 children were still minors. The Public Trustee made an application for proper maintenance and support on their behalf.

o Note: if the spouses were living together at the date of one of their deaths and all of their children are living with the surviving spouse and being supported by him or her, the Public Trustee does not have to make an application if he or she is satisfied that the children will continue to receive maintenance and support from the survivor

Issue: were the minor children entitled to a dependents relief order, notwithstanding that their mother was still around to care for them?

o In other words, should an order be given in all cases where the testator makes no provision for his or her dependent children?

Decision: no.o The minor children were given a security interest in the estate property that would

be discharged without payment when the children attain 18 years of age Ratio: an order for the maintenance and support for minor children will not be made just

because the Public Trustee applies. The children must actually be in danger of not receiving proper maintenance after their parent’s death

o Note: dependency ends at the age of 18

In re Willan Estate: Facts: deceased left a large estate but made a small provision for his estranged wife, and

left the residue to the Salvation Armyo During their separation, she had received a small monthly allowance, but still lived

in povertyo His will included a written statement as to why he was giving his wife such a small

testamentary gift Issue: is the estranged wife entitled to a dependents relief order? Decision: yes. Having regard to the husband’s wealth and the wife’s resources, the wife

should have received more under the will. Ratio: the existence of any statement by the testator regarding the reason he or she made

a particular gift will not be conclusive. “In estimating the weight to be given to such a statement the judge shall have regard to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement.”

o If the statement is made solely for overcoming the provisions of the legislation, it will not be given effect

o Furthermore, the time for considering the circumstances that exist is when the application is heard, not the time of writing the will

o However, the court can also consider the dependent’s character or conduct when determining whether a dependents relief order is appropriate (full discretion to Court)

Note: adequate provision for the proper maintenance and support for that dependent in all of the circumstances that exist does not equal what the dependent would have received on intestacy. It depends upon:

o The station in life of the partieso The age, health and general circumstances of the survivoro The means possessed by the testator at the time of deatho Any property or means the survivor possesses in his or her own right

Note: difference between “adequate” and “proper”o “The use of the word ‘proper’ in this connection is of considerable importance. It

connotes something different from the word ‘adequate’. A small sum may be adequate maintenance for a child, for instance, but having regard to the child’s station in life and the fortune of his father, it may be wholly insufficient for his proper maintenance. So, too, a sum may be quite insufficient for the adequate maintenance of a child and yet may be sufficient for his maintenance on a scale that is proper in all the circumstances.”

Note: precondition to an order = finding that there has been a failure on the part of the testator to make adequate provision for the proper maintenance and support of the applicant

Re Edwards: Facts: a wife who was separated from her husband sought an order to prevent him from

disposing of his property during his lifetime so that she could make a dependents relief claim after his death

Issue I: can a dependents relief order be made while the testator is still living? Decision I: no. A dependents relief order comes out of the estate of the deceased. Issue II: can dependents contract out of the rights provided by dependents relief

legislation? Decision II: no. The state has interest in seeing that dependents are not left impoverished.

o It is the deceased’s responsibility to continue to support them. However, separation agreements can be taken into account

Issue III: should the Court consider the wife’s unfounded application for judicial separation as conduct disentitling her to dependents relief?

Decision III: no.o Dissent: Section 3(5) of the DRA should apply whenever spouses enter

agreements releasing them from their obligation to each other. The disentitling conduct does not have to be criminal, immoral or improper (Hopp agrees)

Here, the wife had willingly abandoned all her rights and duties as a wife Ratio: the Court does not have the power under dependents relief legislation to prevent

dealings by the testator during his or her lifetime, but it does have the power to prevent dependents from contracting out of their rights under the Act

Note: the son alleged that he had entered into a contract with his father whereby if he performed certain tasks, his father would leave him certain lands when he died.

o The onus is on the son to prove such an agreement, that it was bona fide and for valid consideration

Dower v. Public Trustee: Facts: the Public Trustee was appointed to represent the husband because he could no

longer manage his own affairs. The wife applied for a dependents relief order to prevent inter vivos disposition of husband’s property.

Issue: can a dependents relief order be made while the testator is still alive? Decision: no. Ratio: dependents relief legislation does not give a dependent the right to make an

application before the testator’s death. Only the property that the testator has at the date of his or her death is available for a dependents relief order.

o The court cannot make an order with respect to property that does not form part of the deceased’s estate, nor can the court interfere with dealings the deceased makes during his or her lifetime

Note: in certain circumstances, an order under the MPA can prevent one spouse from disposing of property until matrimonial property division has been finalized

Jacboson (Public Trustee of) v. Jacobson Estate: Facts: testator died leaving his 12 children equal shares. One of his children was

institutionalized. Issue: was the institutionalized child entitled to a greater share of the deceased’s estate? Decision: no Ratio: when, in all of the circumstances, reasonable provision has been made for all of the

dependents, the court will not interfere.o What is proper is not necessarily adequate

B. Survivorship

Survivorship Act: Section 1: if two people die at the same time or in circumstances where it is not possible to

determine who died first, the younger person is deemed to have predeceased the oldero Unless sections 2 or 3 apply

Section 2: if another statute or instrument makes provision for what happens when the deceased and the designated person die at the same time and they do both die at the same time, then the prescribed alternative is invoked

o In other words, the gift goes to the alternative beneficiary under the will or the insurance proceeds are distributed according to s. 599 of the Insurance Act

Insurance Act, s. 599: if the insured person and the designated beneficiary die together, the beneficiary is presumed to have predeceased the insured

Section 3: if the will makes provision for what happens when the deceased and the deceased’s personal representative die at the same time and they do both die at the same time, then the substitute personal representative will be appointed

Section 4: this Act is subject to sections 599 and 690 of the Insurance Act and section 320e of The Alberta Insurance Act

Wills and Succession Act: Section 5(1): unless the Court finds a contrary intention, when people die in circumstances

rendering it uncertain as to who survived the other, each person is deemed to have predeceased the other

o Subject to the Insurance Act Section 5(2): unless the Court finds a contrary intention, if two or more people hold

property as joint tenants and they died in circumstances rendering it uncertain as to who survived the other, they will be deemed to have held the property as tenants in common

Re Newstead: Facts: a husband and wife die together and the wife was younger. They had mutual wills

leaving everything to each other, with the husband’s son as the alternative beneficiary Issue: how did the wills operate? Decision: according to s. 1, the wife would be presumed to survive the husband but s. 2

became operative and the alternative beneficiary took everything

Re Law Estate: Facts: husband and wife died together. Wife was younger and was the designated

beneficiary of the husband’s life insurance policy. Both died intestate. Issue: will the wife’s estate receive the insurance money? Decision: no.

o The wife is presumed to predecease the husband with respect to the ordinary property, so the husband’s ordinary property will pass to the wife’s estate.

o However, with respect to the insurance proceeds, the wife is presumed to predecease the husband. The insurance money will be paid to the husband’s estate.

Ratio: the insurance presumption is never spent.

Re Topliss Estate: Facts: same as Re Law Estate Issue: when is the insurance presumption spent? Decision: after it is determined to who the money is initially paid Ratio: once the money is paid to the husband’s estate, the wife can take it as the person

entitled to the husband’s estate upon an intestacy

Re Biln Estate: Facts: husband and wife die together. The wife was younger. Each had a will naming the

other as a sole beneficiary, with the wife’s parents as the alternative beneficiarieso Husband had three life insurance policies naming the wife as the beneficiary

Issue: should Re Law or Re Topliss be followed? Decision: it does not matter—same result either way

o Re Law: goes to husband’s estatewife is already presumed dead so it passes to husband’s alternative beneficiaries (wife’s parents)

o Re Topliss: goes to husband’s estatepresumption is spent, but s. 1 doesn’t apply because husband’s will names an alternative beneficiary (s. 2)passes to husband’s alternative beneficiaries (wife’s parents)

Ratio: indication that Re Law was preferable

Leach v. Egar: Facts: wife divorces husband and then she and both her sons die together.

o The wife was presumed to die first because she was oldest (s. 1)o The wife’s property passes on intestacy to her sons, and the sons’ property

passes on intestacy to the ex-husband Issue: should this result be overturned because of unfairness or offence to public policy?

o i.e., ex-husband should not get ex-wife’s property Decision: no Ratio: once the property passed to the sons, it no longer belonged to the wife

Note: under the WSA, the property would have passed to the wife’s parents etc, because her sons would have been deemed to predecease her

C. Denial of Benefits

Re Medaini: Facts: a husband murdered his wife, but was the sole beneficiary entitled to her estate on

intestacy. The administrator of the estate applied to the Court for directions (AEA, s. 6).o The administrator would then be protected from liability for following the Court’s

decisiono Note: it had already been established under English case law that murderers

cannot take a benefit under the will of their victim (public policy justification) Issue: can a wrongdoer take a benefit upon the intestacy of his or her victim? Decision: no. Ratio: public policy dictates that a wrongdoer cannot take a benefit upon the intestacy of

his or her victim Note: argument was made that statutes reflect public policy so a statute could not be used

to deny the wrongdoer under a public policy justificationo Court’s response: a will is authorized by an Act, so public policy interference is no

different in either situation

Schobelt v. Barber: Facts: husband kills wife and they owned property as joint tenants. The wife’s family

claimed that allowing him to retain the property was unfair.o Asked that the right of survivorship be reversed so that the wife’s estate receives

the entire property Issue: can a wrongdoer take advantage of a right of survivorship when it arises because of

his or her own illegal act? Decision: no. The property vests in the murderer, but he only retains half of the beneficial

interest. o The other half he holds on constructive trust for the victim’s family and survivors.

Ratio: a murderer cannot benefit from his or her own wrongdoing, but he or she also cannot lose rights that he or she had before the wrongdoing (i.e., right of survivorship).

o Statutory rights are unaffected by crime

Note Cases: Re Noble: a wrongdoer is deprived of every right he or she has with respect to the estate

of the victim (i.e., wrongdoer cannot be executor of victim’s estate) Re Charlton: the wrongdoer must be “responsible” for the death in order for this rule to be

invoked (i.e., automatons and probably lunatics can still take under the will of their victim)

Re Dreger: Facts: husband murders wife, then commits suicide. Coroner could prove that the wife

died first, so the Survivorship Act did not apply.o Husband was supposed to take under the wife’s will.o Husband suffered from depression

Issue: was the husband not responsible for the death by reason of insanity so that he would still be entitled to take under the will?

Decision: no.o Depression does not equal insanity

Ratio: it cannot be inferred from the very act of the murder that the wrongdoer was insane Note: the burden of proof is BOP, but more proof may be required according to the

seriousness of the matter Note: children argued that they were so innocent so they should be able to take the

property that the husband would have been entitled to, but for his wrongdoingo Rejecteda person cannot benefit from wrongdoing, whether they committed it or

not “That the person who commits murder, or any person claiming under him

or her, should be allowed to benefit by his or her criminal act, would n doubt be contrary to public policy.”

Note: wife was adopted and had 2 biological siblings. They could not claim as siblings upon her intestacy

CHAPTER FIVE: PROBATE AND ADMINISTRATION

Probate = process that leads to court approval of a will Administration = applicant recognized as valid and given the right to look after deceased’s

estate o Usually granted upon intestacy, but if there is a will with no named executor, there

can be a grant of administration with will annexed Two basics must be proven on an application for a grant of probate or administration:

o Deceased is actually deceased (proof of death)o Deceased had property in the jurisdiction

A. Role of the Probate Court

Duties of the Probate Court:o Decides whether or not a document is entitled to probate as a valid testamentary

documento Decides who is entitled to be the personal representative of deceased

Re Blow: Facts: the testator gave testamentary gifts to his children in trust, and gave the executor

and trustee the right of advancement.o Afterwards, testator made a memorandum advising the trustee when it might be

appropriate to advance funds Issue: should the memorandum be admitted to probate? Decision: no (even though it was testamentary)

o The document was not binding on the trustee, and he still had access to it and could follow its instructions if he so chose

Ratio: only testamentary documents with a valid purpose will be admitted to probate

B. Jurisdiction

The functions of a court of probate are exercised in Alberta by the Court of Queen’s Bench performing a surrogate function

C. Proof of Death and of Property Within the Jurisdiction

1. Property Within the Jurisdiction

R. v. Toronto General Trusts Corp.: Facts: deceased had a mortgage on land in Alberta, but died domiciled in Ontario and had

a duplicate mortgage deed with him in Ontario.o At the time, a mortgage was deemed to exist where the deed was (both in Alberta

with the registry and in Ontario with the deceased) Issue: which province had the right to levy estate tax on the property?

o In other words, in which jurisdiction was the property located? Decision: Alberta. It had the closest connection with the mortgaged land:

o Located in Alberta, registered in Alberta, mortgagor located in Alberta, action for foreclosure would take place in Alberta etc

Ratio: a probate court can only deal with property located in its jurisdiction

2. Proof of Death

Re Butterworth Estate: Facts: a man went to Alaska and said that if he did not return, his friend could have his

land in Alberta. The friend sold the land, and then the man’s family tried to include the land as part of his estate.

Issue: was the man dead? Decision: not yet known. The man’s family must apply for leave to swear an affidavit that

he is dead (BOP)o After this is done, they may apply for probate and/or administration

Ratio: a court may only act on proof of death, not on the presumption of it Note: in other words, AFTER the application for ‘leave to swear person is dead’ is

approved, THEN you apply for a grant of administration

Re Kreutzweiser and Taylor: Facts: two men were lost at sea in a storm. Issue: were they dead? Decision: yes Ratio: death need only to be proved on BOP. Applicant must show that there is no other

reasonable explanation for the person’s disappearance.

In re Weinmeyer Estate:

Facts: diabetic man wondered off his daughter’s farm and had been gone for 2 years at the time the application was made

Issue: is the man dead? Decision: yes Ratio: no minimum time period must pass before an application can be made. The length

of time of the disappearance must be considered against the circumstantial background of the disappearance

o In this case, storm, poor health etc Note: order should not contain reference to the man’s death, but should give a person the

ability to swear to the deatho Great care must be exercised on these applications when applicant would profit

The fact that insurance money has been paid out (or will be) is cogent evidence

Note: if it matters when the death occurred, the onus is on the applicant to prove the date of death, or that the death occurred between 2 dates (BOP)

D. Cases Involving a Foreign Jurisdiction

Possible foreign elements:o Born in a different placeo Made a will in a different placeo Subject to laws in a different place

Wills Act (similar provisions in Wills and Succession Act , ss. 43-45): Section 39(1)(a): immoveable property includes a leasehold Section 39(2): appears to codify the common law choice of law rule with respect to

immoveable property (i.e., governed by lex situs) Section 39(3): appears to codify the common law choice of law rule with respect to

moveable property (i.e., governed by deceased’s domicile of death) Section 40: with respect to moveables, if a will is formally valid according to the

deceased’s domicile at death, domicile when the will was made, domicile of origin or the place where the will was made, then it will be formally valid

o Note: immoveables only ever governed by the lex situs Section 43: when the value of a moveable relates entirely to its relationship with a piece of

land, it is treated as immoveable (governed by the lex situs)o Not talking about fixtures (if something is a fixture, it is part of the land and

therefore already an immoveable)o i.e., keys to the house (a moveable, but who inherits them will be governed by lex

situs)

1. Jurisdiction of the Alberta Court

In re Kloebe: Facts: creditors of the deceased were located both within and outside of England Issue: did the creditors within England have priority with respect to the estate? Decision: no, not according to English law Ratio: the rules of procedure of the jurisdiction where the assets are located will govern

Re Baker: Facts: grant of probate issued in British Columbia. The deceased also had property in

Alberta. Issue: can the BC administrator apply for resealing in Alberta through an agent? Decision: no Ratio: the original recipient of the grant must apply for resealing him or herself

o Rules out the executor of the original executor where the latter failed to reseal during his lifetime

Note: resealing occurs because a deceased may leave property in multiple jurisdictions, but only the court in the jurisdiction where the property is located may approve a grant with respect to that property

o Resealing allows a grant from one jurisdiction to be approved in every other jurisdiction in which the deceased held property

o Applies to every commonwealth jurisdiction

2. Applicable Law

Re Bishop: Facts: the testator’s domicile of origin was Austria. He subsequently moved to Ontario and

made a holograph will.o Ontario did not recognize holograph wills but, at the time the will was made, the

man’s domicile of origin (Austria) recognized the validity of holograph wills with respect to movables

Issue: was the will valid with respect to movables? Decision: yes, but the testator died intestate with respect to immoveables Ratio: a will that complies with the law of the testator’s domicile of origin will be valid,

notwithstanding it does not comply with the domestic lawo Note: need expert evidence to prove foreign law (can use affidavits)

In re Martin: Facts: lady moved from France to England and made a holograph will while she was there.

o She married a French fugitive and acquired his domicile as a domicile of dependence

o In England, holograph wills were not valid with respect to movables and a will would be revoked upon the subsequent marriage of the testator

o In France, holograph wills were valid to dispose of all property and the marriage of the testator does not revoke a will

Issue: where was the husband domiciled? In other words, where did the woman acquire a domicile of dependence?

Decision: France. The will was not revoked upon marriage and was wholly valid Ratio: domicile is determined by the law of the jurisdiction hearing the matter

3. Conflicts Law and the Distribution of Estates

Intestate Succession Act : Section 3: spousal preferred share (spouse gets first $40 000)

Double dipping—if moveables are governed by Alberta and immoveables are governed by Ontario, then do you get the first $40 000 out of the moveable estate AND the first $40 000 out of the immoveable estate because they are governed by different laws?

Re Collens , 1986 Eng. Ct. Ch. Div.: Facts: deceased died intestate in Trinidad, and had immoveable property in England

o Surviving spouse settles claim in Trinidad for approximately $1 million, then brought proceedings in England to claim her preferred shared under English law

Issue: if the moveable and immoveable estates are governed by different laws, is the spouse entitled to claim both preferred shares?

Ratio: trial judge was uncomfortable with this argument, but felt there was no way around it Decision: she was entitled to her preferred share from the English immoveable estate Hopp: this decision is wrong.

o Section 1(c) of the ISA specifies that the net value of the estate is the value, wherever situated. This precludes the spouse from claiming the spousal preferred share in every jurisdiction

Practically, will get the highest preferred share of which he or she would be entitled

E. Grants of Admission

1. Obtaining Grants—Some Procedural Aspects

(a) Grants in Common and Solemn Form

Common form: administrative procedure whereby the personal representative submits the required documents to the clerk of the court. Once the clerk inspects them for accuracy, they will be forwarded to a judge in chambers, who will issue the grant

o Must give notice of the application to the beneficiaries, but can be challenged by anyone interested in the estate

Once the estate has been distributed, the challenger is out of lucko If there has been a challenge to a common grant, the only safe thing for the

executor to do is apply for a grant in solemn form Solemn form: grant given after a trial where the applicant proves the validity of the will

o Testamentary capacity, compliance with formalities, dispel suspiciono Every interested person must be given notice—they have the right to appear and

make representations May appeal to ABCA Any person who received notice will be bound by appeal, or by expiration

of appeal period

Young v. Holloway: Facts: the applicant’s mother opposed the probate application. She was assisted by her

son, who everyone thought was disinterested in the estate.o Later, an earlier will was found in which the son was named as a beneficiary

Issue: did the son’s involvement in the earlier application preclude him from challenging the grant?

Decision: no. The man did not know he could intervene on his own behalf; therefore, he is not bound by the outcome.

Ratio: the rule of a person being bound by proceedings to which he was no party depends on his cognizance of the proceedings, and his capacity to make himself a party

(b) Rights to the Grant

Re Agnew: Facts: four executors were appointed by the will and ¾ opposed the grant being given to

the 4th named executor Issue: can a grant be refused when an executor is named in a will? Decision: no Ratio: the court cannot refuse a grant to a named executor, unless the proposes executor

has some sort of legal impediment (i.e., incapacity etc)

Re Androws: Facts: there were 3 applicants for a grant of administration. Two were creditors of the

deceased, and one was a trust company Issue: who was entitled to the grant? Decision: the trust company Ratio: a fundamental principle to be followed in deciding who should be appointed as

between applicants is the presence or absence of a personal interesto “Should one of the applicants have an interest incompatible with the due

administration of the estate, the Court will exclude him” “…unless there be some reason to the contrary the official trustee, and

probably also an authorized trust company, should be preferred to a creditor.”

Note: applies to debtors of the estate as well

Re Muttart Estate: Facts: the testatrix appointed her husband as her executor, with her son as an alternate

should her husband not survive for 30 days past her death. The husband survived, but failed to apply for a grant before he died.

o Since alternative clause was not invoked, the son had to apply (through a trust company) for a grant of administration with will annexed

Opposed by daughter Issue: who should be given the grant? Decision: the daughter (residence was an important factor) Ratio: the following factors should be considered when deciding which applicant to

appoint:o Whether either applicant has a personal interest that might conflict with his or her

duty as administrator Daughter’s position as an officer of a company that owed money to the

estate was not determinative (she had provided security)o Whether either applicant has the support of the legatees that are entitled to the

greatest proportion of the estate

Legatees were misled when they filed affidavits in support of the trust company

o Whether the applicant is male or female—pursuant to the archaic principle of caeteris paribus

Caeteris paribus should be discardedo Whether either applicant is resident in the jurisdiction

The daughter was resident, the son was noto Whether either applicant is capable of the proper administration of the estate

Though the trust company was a professional administrator, the daughter was still capable of performing the job. Capability is all that is required

o Which applicant is oldero Which applicant applied first

Note: “In cases where the competing applications are from next-of-kin it is in the discretion of the court to appoint an administrator.”

Note: grant application is a final decision—requires affidavits based on actual knowledge

(c) Revocation of Grants of Wills

Anyone with an interest in the estate can apply to revoke a grant made in common formo Because no one has made any representations

An appeal can be made to the ABCA for a grant of solemn form in order to effect revocation

o Anyone who received notice and/or made representations concerning the grant will be bound by the results of the appeal and/or the expiration of the appeal period

o If a later document is found, or if someone has not been given notice of the original grant, a further appeal can be filed

Caveat = temporarily halts grant proceedingso Surrogate Rules, s. 71(1): may file a caveat under the AEAo Surrogate Rules, s. 73: sets out forms to be filed by caveator

Trites et al v. Johnson et al: Facts: application to have grant in common form set aside

o Eventually, 2/3 applicants withdrew their objectiono On the morning of trial, the 3rd sought leave to withdraw

Issue: should the grant be proven in solemn form, notwithstanding there is no longer any objection to the grant?

Decision: yes Ratio: the executor of a will has the right to have his or her entitlement to the grant proven

in solemn form (especially if the validity of the grant has been called into question)

Van Hecke v. Van Brabant Estate: Facts: the testator appointed her 2 daughters as her executors in her will, and then

changed the appointment to her son by codicilo Daughters filed caveats, alleging the testator did not have testamentary capacity

when the codicil was made Issue: should the daughters be given the grant? Decision no. There came a time when it was clear that the caveat should have been

withdrawn

o The judge found against the daughters and awarded costs Ratio: in proper cases, costs can be awarded against the caveator.

o Cannot use a caveat simply as a stall tactic

Guardian Trust & Executors Co of NZ v. Public Trustee of NZ: Facts: the testator lacked testamentary capacity, so the will was invalid.

o But the executors had already distributed some property under the invalid will, acting in accordance with a grant in common form

Knew that there was a possible challenge to the will Issue: are the executors personally liable for the distribution, notwithstanding that they

were acting in accordance with a grant? Decision: yes. In light of the possible challenge, the executors should have applied for a

grant in solemn formo Notice to creditors/claimants did not capture proper beneficiaries

Ratio: a grant only gives the executor the power to administer the estate according to the law

o Here, the distribution was done under an invalid will, so it was not done according to the law

o “If a person in a fiduciary capacity has received notice that a fund in his possession is, or may be, claimed by A, he will be liable to A if he deals with the fund in disregard of that notice should the claim subsequently prove to be well founded.”

F. Liabilities of Personal Representatives

Charron v. Montreal Trust Co: Facts: probate was granted in Quebec, then the administrator—as representative of the

estate—was sued in Ontarioo There was no grant or property in Ontario, but the administrator filed a defence

anywayo By this act, he become an executor de son tort—acting as an executor without

authority to do so Issue: was the administrator personally liable for any resulting loss to the estate? Decision: yes. Ratio: executors de son tort may be personally liable for costs

McAfee Estate v. Carrier: Facts: an administrator was appointed in Ontario and then commenced an action in

Alberta without first obtaining a grant (resealed or otherwise) Issue: did the administrator have the power to commence the action? Decision: no Ratio: the power of an administrator comes solely from the grant. Therefore, an

administrator only has power in the jurisdiction that issues the grant.

CHAPTER SIX: CONSTRUCTION OF WILLS

ABQB = probate court and court of construction Probate court decides which documents form the testator’s will

o Some interpretation is required, but it is not binding on any other courto The probate court is not confined to what is written in the will—can hear any

evidence Court of construction interprets the will

o Confined to the will itself and any proper armchair evidence

Wills and Succession Act: Section 39: Court can rectify a will

A. By the Probate Court

In Re Hawksley’s Settlement: The probate court must interpret the documents in order to determine which of them form

part of the willo Interpretation is limited to this purpose (i.e., to decide which documents are

testamentary and should be admitted to probate)

Re Fawcett Estate: Facts: the testator had a will and then subsequently drafted a codicil Issue: did the codicil revoke the will? Decision: yes. It was clear to the probate court that the codicil was meant to revoke the

will Ratio: the probate court may interpret a document, but its interpretation is limited to

determining which documents should be admitted to probateo Furthermore, this interpretation is not binding on the court of construction

B. Power of the Probate Court and the Court of Construction to Correct Mistakes

The probate court can hear all types of evidence in order to determine if a mistake was made

The court of construction can only hear outside evidence when there is ambiguity on the face of the will

o i.e., two pieces of property are both described in the same wayo i.e., two people are properly described in the same way (for example, they have

the same name)

Guardhouse v. Blackburn: Sets out the rules regarding the probate court:

o Before a document is entitled to probate, the Court must be satisfied that the testator knew and approved of the contents at the time he or she signed it;

o Except in certain cases, where suspicion attaches to the document, the fact of the testator’s execution is sufficient proof that he knew and approved of the contents;

In other words, execution by the testator creates a presumption of approval

o Although the testator knew and approved the contents of a document, it still may be rejected on proof establishing that he did not intend the document to operate as a will;

o Although the testator did know and approve of the contents, the document may be refused probate, if it be proved that any fraud has been purposely practiced on the testator in obtaining his execution;

o Subject to the fraud rule, the fact that the will has been duly read over to a capable testator on the occasion of execution, or that its contents have been brought to his notice in any other way, and the fact that the will has been duly executed should be held as conclusive evidence that he approved as well as knew the contents of the document; and,

o All of the above rules apply equally to a portion of the will as to the whole.

In Re Morris: Facts: after making her will, the testator wrote to her lawyer asking that clauses 3 and 7(iv)

be revoked. He made a codicil revoking clauses 3 and 7, which she signed and which was duly executed

Issue: does Rule #5 from Guardhouse v. Blackburn apply? Decision: no. If Guardhouse #5 was applied, the court would have to accept that because

the testator read the will it was conclusive evidence she approved of what was in the willo Lawyer admitted this was a mistakeo However, the Probate Court also cannot add words into a will (i.e., insert the (iv)

after the 7) They can only strike out words that have been put there by mistake

Ratio: Rule #5 has been diluted and probably no longer has any application. However, a court cannot add words into a testator’s will

o If words are deliberately inserted into a will and are intended to be part of the will at the time it is executed, Court must give effect to them

Even if they were inserted by a draftsman and they were mistake as to the legal effect of the words

Re Reynette-James: Facts: there was a drafting mistake and it was clear from reading the clauses that

something had been excluded. Issue: could the court add things into the will so that it made sense? Decision: no Ratio: the Court may strike out words that are not intended to form part of the will, but they

may not add words that have been mistakenly omitted

Collins v. Elstons: Facts: two ladies lived together, one wanted to leave provision for the other in her will.

She drafted a will and then obtained a life insurance policy, whereby she wanted the other lady to receive 3/5 of the proceeds when she died.

o The insurance salesman drafted a document to this effect that stipulated that it revoked all prior wills. The lady said she did not want to revoke her will, and the salesman assured her it would not have this effect

o She signed the document

Issue: did it revoke her will? Decision: yes Ratio: even if the testator is mistaken as to the legal effect of a word, if it is deliberately

inserted and intended to form part of the will, the Court cannot strike it out

In the Goods of Bushell: Wrongly decided Butt J. added a word because, without it, the gift was insensible (changed British Royal

Infirmary to Bristol Royal Infirmary)o Cannot do this

Court can only strike out words that are included by mistake

In the Goods of Boehm: Facts: testator had two daughters—G and F—and wanted to leave his property to them

equallyo A drafting mistake left two identical gifts—each consisting of half of the estate—to

G. F was excluded Issue: can the court substitute F for one of the G’s? Decision: no. But the Court can strike out one of the G’s and then admit the document to

probateo Thereafter, the court of construction may be able to determine that the second gift

was to go to F Ratio: a probate court can only strike out words that were included by mistake, they cannot

add words

In Re Horrocks: Facts: the way a gift was worded in the testator’s will made it void for uncertainty.

o The lawyer blamed the secretary claiming that no one intended certain words to be included in the will, it was simply a typing mistake

Issue: can the words be struck out? Decision: no Ratio: if it’s possible that words have been deliberately included in a will, they cannot be

struck out

Re Smith: Facts: things were accidentally left out of the will and it was clear from reading it that these

omissions had occurred Issue: can the necessary words be added? Decision: no. But effect was still given to the testator’s intention Ratio: the court must read the will as a whole and interpret the words that appear. If, from

those words alone, it is possible to ascertain the testator’s intention, then effect may be given to that intention.

o In other words, where there’s been an omission, if the court can determine the clear intention of the testator, they can give effect to that intention even in the absence of express words

In the Goods of Schott: Facts: the word “revenue” was inserted instead of the word “residue”. Simply deleting

“revenue” would have made the will unintelligible.

Issue: could words be added to give effect to the testator’s intention? Decision: no. Court struck out “revenue” and three other words that weren’t inserted by

mistake in order to give effect to the testator’s intention. Ratio: refused to follow In the Goods of Bushell

Guardian Trust v. Inwood: Facts: two sisters made identical wills, but they signed each other’s by mistake. Issue: are the wills valid? Decision: yes. There was an obvious mistake, so the Court crossed out the names and

had the court of construction construe what was left to effect their intention of leaving their property to each other.

Re Brander: Facts: husband and wife made identical wills but signed each other’s by mistake.

o Judge inserted wife’s name so that husband’s will was not giving property to himself and naming himself as an executor

Langston v. Langston: Facts: words were left out of a will.

o Court of construction could only look at armchair evidence to determine what those words were

o In effect, the court was “guessing”

Re Davis Estate: A will must be read as a whole and ambiguous clauses must be interpreted in that context Court of construction can consider armchair evidence = who the testator was, his

education, his language, his particular peculiarities, the important people in his life, how he treated the people in his life etc

Goblet v. Beechey: Facts: the testator had a collection of valuable models, which he disposed of by will.

o A later codicil referred to “mods” and an unintelligible assortment of items Issue: did the codicil intend to re-dispose of the model collection? Decision: no. Armchair evidence shows that the testator took the models seriously, so a

messy non-sensical codicil couldn’t revoke the will’s position Ratio: there was no intention in the codicil to deal with the valuable collection

Kell v. Charmer: Facts: the testator used special language to denote prices, and used this language to

describe monetary gifts in his will. Issue: how could the will be interpreted? Decision: armchair evidence can be used to crack the number code

o The court could not ask the sons what the gifts meant, but they could ask: Was there a code? What did x mean? Etc

Higgins v. Dawson:

If the testator’s intention is clear on the will, court will give effect to that intention and won’t look to any armchair evidence

Doe d Hiscocks v. Hiscocks: Facts: the clause “to my eldest son John” partly described two people Issue: should one part of the phrase be struck out? Decision: no. There was no way to tell which part of the phrase the testator would have

wanted struck out Ratio: there must be some evidence of the testator’s intent in order to strike something out

of a will

In Re Fish: Testator gave a gift to his niece Eliza. He didn’t have one but his wife had two (one

legitimate and one illegitimate)o Court gave the gift to the legitimate Eliza

If two legatees are named, court will grant to the one most properly described – if they’re equally described THEN extrinsic evidence can be heard

In Re Mayell: Testator owned multiple houses, but they were misdescribed in his will

o The court struck out the words that were inserted in error

Re Wynn: Testator made a will saying that she did not want any of her property to pass to her

husbando She died intestate, but the husband got nothing on intestacy because of this

clause

Re Brechin: The testator gave all his property to his wife by name, they divorced and then he died Was she entitled to the gift notwithstanding they were no longer married?

o Yes because she was a named beneficiary. If the clause had only said “to my wife”, she would have gotten nothing.

If you specifically name someone and their status in your will they will take a gift no matter what status/position they hold UNLESS you have provided a contingency for that status changing