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Estates Law News: Strict versus Substantial Compliance with Statutory Formalities for Wills

By Andrea Hill, Turkstra Mazza

December 2020

When Beat George Hubschi died suddenly in June 2017, his family looked through his papers to see if he had prepared a Will. They found documents and notes suggesting that he was interested in estate planning, but no Will. When they were able to unlock his computer, Hubschi’s family found a document entitled “Budget 2017” that contained the following line:

Get a will made out at some point. A 5 – way assets split for remaining brother and sisters. Greg, and at or Trevor as executor.

The question before the Supreme Court of British Columbia was whether the document found on Hubschi’s computer could be cured of its failure to adhere to the statutory formalities for Wills.

Section 58 of B.C.’s Wills, Estates and Succession Act, S.B.C. 2009, c. 13 (the “Act”) allows a court to validate a “record, document or writing” that does not comply with the Act as though it were a Will provided that it represents the testamentary intentions of the deceased. The standard of evidence, as determined in Estate of Young, 2015 BCSC 182, is that the court must be satisfied on a balance of probabilities that the written document in question embodies the testamentary intentions of the deceased.

Justice Armstrong considered Hubschi’s background and the evidence surrounding the electronic document. At his birth, Hubschi’s mother had placed him in care with the Children’s Aid Society of the Catholic Archdiocese of Vancouver. He was placed into foster care with the Stack family when he was three years of age. The Stacks treated him as a natural son and as a sibling to their children, one of whom was the “Greg” referred to in the document. Hubschi never married and never had children. He had no relationship with his birth mother or their family. Hubschi’s birth mother had predeceased him, however, there were extended family members living in Switzerland who would inherit on an intestacy.

Shortly before his death, Hubschi had undergone surgery to address a medical issue with his legs. Upon his discharge, he returned to his apartment. He did not leave his home after his release from hospital. The “Budget 2017” document appeared to have been modified on the date of his death.

Justice Armstrong was satisfied that the document was created by Hubschi. He then considered whether the document expressed Hubschi’s full, final, and fixed intention to dispose of his property to his Stack siblings on his death. Justice Armstrong held that, although that document was not compliant with the Act and contemplated a Will being prepared in the future,

…I conclude that Mr. Hubschi’s testamentary intentions were reflected at the time he created the computer entry and when he reviewed the document on the day he died based on:

a.   the details concerning his history and ongoing close relationship with the Stack children,

b.   the Stack children’s ongoing care for him,

c.   the obvious deterioration in his health at the time he opened this document on his computer on the day he died, and

d.   the division of Mrs. Stack’s estate between Mr. Hubschi and his brothers and sisters.

Were this case brought in Ontario, there would have been a different conclusion. Ontario is a “strict compliance” jurisdiction, meaning that purported Wills that do not comply with the formalities set out in the Succession Law Reform Act, R.S.O. 1990, c. S.26 (“SLRA”) are invalid.

These statutory formalities deal with the manner in which the Will is prepared, where and how it is signed and before whom. The SLRA dictates that Wills are valid only when they are in writing and they must be signed by the testator in the presence of two witnesses who subscribe the Will. The location of the testator’s signature at the end of the document is also important, as it makes it clear that the testator intended to give effect to the Will. If, for example, the testator’s signature appears before or prior to any dispositions or directions, those dispositions or directions are not given any effect. This also applies to any gifts or dispositions inserted in the document after the testator has signed.

Some leeway is given to holograph Wills and to Wills prepared by members of the armed forces on active service. In such cases, there is no requirement that the document be witnessed. In the case of holograph Wills, they must be completely in the handwriting of the testator and signed by him or her.

In Bank of Nova Scotia Trust Co v. Ait-Said, 2016 ONSC 4051, an undated, unsigned handwritten note allegedly clipped to a valid holograph Will was found to be a planning document and not a testamentary instrument as it was not signed. If it had been properly appended to the signed documents, then the court held that any disposition in the document was underneath or after the deceased’s signature and should not be given effect.

In Laframboise v Laframboise, 2011 ONSC 7673, the deceased signed his holograph Will at the beginning and at the end of the document. Despite the language in section 7(3) of the SLRA (which invalidates any dispositions made after a signature), the signature at the end of the document was found to give effect to the dispositions above it.

In Eissmann v. Kuntz, 2018 ONSC 3650, unsigned alterations made to a holograph Will were found to have no force or effect.

While working with a lawyer on one’s estate plan is recommended, the fact is that there are Ontarians who prepare their own Wills, and some of them do not comply with the SLRA. This raises the question of whether Ontario should follow provinces such as B.C., Saskatchewan, Manitoba, and Nova Scotia and allow non-compliant Wills to be validated if they embody the testamentary intentions of the deceased. Would it have mattered if Cecil George Harris had not signed his name after he scratched out “In case I die in this mess I leave all to the wife” on the side of the tractor that had pinned him? Is it enough if he had written those words and that they represented his full, final, and fixed testamentary intention?

In early August 2020, the Attorney General sought input from law associations and practitioners as to whether the Ontario court should be granted greater latitude in validating an improperly prepared Will, so we may get our answer soon.

Andrea M. Hill is a litigation lawyer with Turkstra Mazza whose practice focuses on estate litigation and commercial litigation. She can be reached at:

Turkstra Mazza

15 Bold Street

Hamilton, ON, L8P 1T3

Tel: (905) 529-3476

Fax: (905) 529-3663