February 9, 2019

Estate Law Update: Is A lost Will A Fatal Event? And, Is A Detailed Intention To Make A Will Enough To Make A Will?

The Alberta Court of Appeal has answered both of these interesting questions, on the same day!

Lost and Found – If a Will is lost, how can it be “found” again?

Although the Court doesn’t address the more philosophical question here, it does answer the more practical question of what the executors and beneficiaries can do when the original document itself is nowhere to be found, when the testator dies.

On January 30, 2019, the Court of Appeal decided in the Neufeld v. Neufeld case (2019 ABCA 33), that an unsigned copy of a 1988 Will can be given a grant of probate.

Although this is not new law, the Court of Appeal has given it fresh effect. In the Cordell case we discussed in 2016, the lower court (Queen’s Bench judge) found that Will was proven solely by oral testimony of its contents (where the document was entirely missing upon the testator’s death).

The lower court in Cordell applied a more detailed standard than the new Neufeld decision. In the Goold case we discussed in 2016, the court looked at an analogous situation where the Will was a photocopy of the signed holographic Will, but not the original ink version. Both the Cordell and Goold decisions granted probate of the Wills.

The new Neufeld decision is the highest and newest case on “lost Wills,” in Alberta. The Court of Appeal dismissed the allegation by the appellant that the lower court had no authority to do so, and upheld the lower court’s grant of probate of a copy of a lost Will. The high court in Neufeld confirms that the courts do have authority to consider your application to save a lost Will, if you can show:

1. The lost Will was “duly executed.” This means that the testator signed it in the presence of two subscribing witnesses and all 3 signed the Will together, for a formal Will; or that it is entirely in the testator’s own handwriting and signed by the testator, for a holographic Will; and,

2. The copy reflects the contents of the lost original Will. This requires proof that the testator “knew and approved” the original Will’s effects, in a legal sense; and,

3. The presumption that the testator destroyed the Will, if the original is not found at death, is rebutted or inapplicable. If the testator was the last one holding the Will before they died, but it is missing at death, there is initially a weak presumption that the testator destroyed the Will and it is accordingly voided. However, that presumption can be rebutted. Doing so requires proof of chain of possession and that the Will continued to exist up to the moment of death: in other words, that the Will was always in the testator’s possession before death and beyond, up to the date it was lost.

As in all estate litigation, the evidence presented must be corroborated by more than just one witness attesting to the key facts, as required by the Alberta Evidence Act. Such proof can be by multiple witnesses, or a combination of witnesses and records or declarations that, together, corroborate the statements to convince the court.

So, as of 2019 the law in Alberta is that you can indeed find a Will again. All is not lost.

Is a Detailed Intention to make a Will, a “Will”?

It seems perhaps obvious that one can no more wish a wild horse into being by picking its name, than they can wish a Will to spring forth from merely naming names or drawing out broad strokes in the abstract sense.

In this new court case, it appears that the latter logic was an honest but mistaken view of section 39 of the Wills and Succession Act.

In some situations, section 39 the may indeed save a “slip,” from killing an otherwise valid Will.

On January 30, 2019, the Court of Appeal in the Re Hood Estate case (2019 ABCA 34) found that if there is “clear and convincing evidence” that the testator “intended to sign the document (Will) but omitted to do so by pure mistake or inadvertence,” and that the document was the testator’s final, binding intention for their property (i.e. their “last Will”) then the courts indeed can correct the oversight of failing to sign it by deeming the Will signed and valid.

However, in the Hood Estate case, the argument advanced by the disappointed beneficiary (the testator’s nephew), is that his aunt intended to change her Will, hired a paralegal to prepare the drafts, but failed to sign it before she died, and so her death itself was the “inadvertence” that prevented her from actually signing it, to satisfy s. 39 of the Act and deem it signed.

The apparent gap in this argument that both the lower court and the Court of Appeal found, is that mere death itself comes to each of us, and cannot be an “inadvertence” that gets in the way of the signature. In the Hood case, the aunt had also had a lengthy period of time, albeit while in the hospital (a not-uncommon scenario in actual practice), to review the detailed draft Will that the nephew apparently shuttled between the paralegal and his aunt. The appellant (nephew) presented no convincing evidence as to why it wasn’t equally logical that his aunt simply either never reached a “final, fixed intention,” to make that Will valid, or that she had even intended to sign it.

This decision confirmed that under Alberta’s legislation, the courts do not have the ability to imagine into being the missing evidence of that final intention to sign the document. And, the testator’s death itself while a draft is “out there” on the high seas, does not allow an inference that they intended to put into port to sign that draft document.

So, in short: even a detailed draft wish is not a final wish, without being either a firm and final swish of the pen or a mere a slip twixt swish and swatch. To learn more or to begin a discussion regarding your unique situation, please contact one of our Wills and Estate lawyers today.