Regarding the interpretation of a testamentary document, Alberta courts have long held that giving effect to the deceased’s wishes is paramount. When the formal legal requirements for a valid will are not met, the courts have some leeway to look beyond errors or omissions in the document to determine the will-maker’s true intentions.
This flexible approach helps protect the interests of those who choose to prepare their own wills and may not be familiar with the formal requirements. In a recent decision, the Alberta Court of Queen’s Bench applied this approach to examine a will created in an informal, social setting.
Handwritten will drafted over drinks with friends
In Meunier Estate, Robert Meunier was visiting his friends at their home for an informal night of socializing on February 14, 2020. At some point during the evening, the conversation turned to the subject of wills. Robert’s friend, Donna Henze, told him that if he died without a will the government would take all of his assets, including his house.
Robert was upset by this idea so he asked Donna to write a will for him. She wrote a two-page document which she said accurately reflected the wishes that Robert had dictated to her that night.
The document was signed and witnessed
Having read over the document, Robert signed it on the first page, but he did not sign or date the second page. Both Donna and her partner, Norman Henze, witnessed Robert sign the document. However, only Donna signed as a witness.
Donna applied her Commissioner of Oaths stamp to the document in an effort to formalize it. She kept the will in her possession until Robert’s passing.
The Henzes said that Robert had consumed two or three beers during the evening and that he was competent to make a will and understood the significance of what he was doing. Further, they stated that they had had earlier conversations with Robert about how he wanted to distribute his property and these conversations were consistent with the instructions he dictated to Donna.
Testator’s brother applies to administer estate
On August 28, 2020, Robert passed away after a battle with cancer. He had no children of his own but he had two brothers, two sisters and other relatives who survived him. On September 23, 2020, one of his brothers, Roland Meunier, applied to be the personal representative of Robert’s estate, claiming that he had died intestate. He alleged that the residue of Robert’s estate should be divided equally among his four surviving siblings.
Two of Robert’s nieces claimed that Robert had not died intestate. They referred to the two-page document he had signed several months before his passing in which they were named as beneficiaries.
Testator’s brother disputes the validity of the will
In support of his argument that the document was not a valid will, Roland submitted evidence of conversations he’d had with Robert about the night in question. Roland said that Robert had told him he was drunk when Donna asked him if he had a will and he “played along with the joke” of drafting one.
What are the requirements for a valid will in Alberta?
Sections 14, 15 and 16 of Alberta’s Wills and Succession Act (the “Act”) sets out the following formal requirements of a valid will, which state that:
- the will must be in writing;
- the will must be signed by the testator in a way that makes it clear on the face of the document that they intended, by signing, to give effect to the writing in the document as their will; and
- in a formal will, the testator’s signature must be witnessed by eligible witnesses who also sign the document in the presence of the testator, or
- in a holographic will, the document must be entirely in the testator’s handwriting and be signed by the testator.
Alberta law allows court to validate a non-compliant will
Under section 37 of the Act, the court is entitled to order that a document be recognized as a valid will, despite not meeting the formal requirements set out in the legislation. The court can make such an order when it is satisfied, upon review of clear and convincing evidence, that the document’s contents represent the true testamentary intentions of the testator.
The Court acknowledged this in Meunier, stating:
“Where the statutory requirements have not been met, an asserted testamentary document is not presumed to be invalid; rather, the Court then owes a duty to the deceased person to give effect, if possible, to their intentions.”
Factors to consider in assessing testamentary intentions
Turning to its analysis of the testamentary document, the Court set out an extensive set of questions that courts should ask in determining whether a document sets out the deceased’s true testamentary intentions, such as:
- whether the document contains a reference to being a will;
- whether the document contains the typical elements of a will, such as paying debts and distributing property; and
- whether the document is signed by the testator.
Court finds document met some formal requirements for a valid will
Applying the factors described above, the Court held that, while the document didn’t include references to it being a will, it did contain some of the typical elements of one. For example, the document dealt with the distribution of property and provided funeral instructions.
Although the document was only signed by one witness instead of two as the Act requires, Donna did make the extra effort to commission both pages. The Court said that this suggested both she and Robert understood the finality of the document. And while Norman didn’t sign as a witness, he was present when the document was drafted and could attest to Robert’s wishes.
The parties acted as if the document were a potentially valid will
The Court pointed out that if Robert had truly considered the document to be a “joke with no legal significance,” he wouldn’t have tried to retrieve it on numerous occasions. Further, Roland stated that he never attempted to destroy the document after receiving it from Donna, and in distributing Robert’s belongings, he did so in a strikingly similar way to the distribution contemplated by the document. In the Court’s view, this suggested that the parties viewed the document as a potentially valid will.
Court holds that the first page of the document constituted a valid will
The Court acknowledged that the document did not meet the formal statutory requirements for a valid will. Therefore, the question before the Court was despite the absence of formal requirements being fulfilled, did the writing truthfully represent the deceased’s testamentary intentions?
The Court held that the document’s first page contemplated what Robert had wanted to happen to specific items in his estate, particularly his house. In addition to lacking a date, signature, or initials, the second page contained vague and ambiguous terms. There was also circumstantial evidence to suggest that the second page may not have been written at the same time as the first page.
For these reasons, the Court held that the document’s first page constituted Robert’s valid will, but the second page did not.
Contact the Wills and Estates Lawyers at DBH Law for Advice on Estate Planning and Estate Litigation in Alberta
The experienced wills and estates lawyers at DBH Law in Calgary provide clients with comprehensive advice on a range of estate matters including estate planning, estate administration, and estate litigation. We understand the importance of having an up-to-date will to ensure that your friends and family will be taken care of after your pass and that the possibility of an estate dispute is minimized. To speak with a member of our estate planning and litigation team, reach out to us online or by phone at 403-252-9937.