Estates Law News: Strict versus Substantial Compliance with Statutory Formalities for Wills
By Andrea Hill, Turkstra Mazza
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
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
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:
15 Bold Street
Hamilton, ON, L8P 1T3
Tel: (905) 529-3476
Fax: (905) 529-3663