If your intentions as to your estate are not clarified to the extent required by law, you will be intestate. In such cases, the additional costs associated with probating your estate can cause great strain to your survivors. It is always advisable to have a clear, valid will in place, representing your final wishes as your estate, to avoid any complications.

Here, we summarize the article “Will or will not: practice implications of section 58 of the Wills, Estates and Succession Act”. In this article Jennifer P. Bednard explores instances where a will, despite not meeting the required legislative formalities, can still be held a valid testament of the deceased. The essential principles considered for the validity of a will, are firstly authenticity, and secondly that the will is representative of the “fixed and final” intent of the testator.

The leading authority on testamentary documents is George v Daily, wherein the Court set out a test for determining the validity of testamentary documents created by a third party. The document must be made at request of the deceased, and the deceased must have knowledge and approve the contents as their final intent. This was not the case in George, as instructions were given to an accountant, who then relayed them to the lawyer without the deceased having seen the same.

The Court further suggested in George, that notes taken by a lawyer, which can be shown to reflect the approved final wishes of the deceased can act as a provisional will. By inference, the same could apply to a draft will. This is hindered by formality requirements however. In Woods Estate (Re), the Court was satisfied that the will questionnaire, and the instructions to the lawyer, reflected testamentary intent, the formality of execution was not satisfied. The article posits that, were the same matter in BC, it would have been admitted for probate.

In Timm v Rudolph, the Court considered admissibility of notes taken by an articling student, who had the client sign notes taken of their meeting. However the Court concluded that the intent for the signature was not to certify that the notes were reflexive of the client’s final wishes, and was only for confirmation that the client would honor the invoice. This shows that the courts will give due consideration to material such as notes or questionnaires as testamentary intent, however this consideration is tempered by the facts of each case.

Next, the Bednard explores the admissibility of a draft will. In cases such as Bailey Estate (Re), and Herod Estate (Re), it was held that the crucial element in admissibility is a further step on the part of the testator, indicative of the finality of the testator’s wishes. In both cases, despite the lawyers having submitted to the client a final draft of the will, the wills remained unsigned, and clients took no further steps to indicate the will was their final wishes. In contrast, in Buliziuk v Pischnot Estate, the testator verbally confirmed with her lawyer that the draft will represented her final wishes, and in Ouellet Estate, while unsigned, the testator sealed the letter in an envelope marked last will and testament. In both cases the Courts found the draft will, coupled with the further actions of the testators is satisfactory.

As such, practice considerations should be to ensure that starting at the meeting stage, and continuing forward, the lawyer confirms whether the wishes of the client are final, and note the same. If the client does not survive to sign the will, the lawyer can then testify that the client has confirmed their instructions to be their final testamentary wishes.

The team at Sodagar & Company has extensive expertise in estate planning. We understand that such matters can be difficult to consider. However, for the ease of your loved ones, it is always advisable to seek professional advice, and insure your family’s future. You can click here to access our will questionnaire, and familiarise yourself with what information is required for setting your affairs in order.

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