A question of intent

The ‘tranquil revolution’ in probate law, which began in South Australia in 1975, continues to march across Canada.[1] In nearly all of the common-law provinces, legislation has been enacted to introduce a ‘validation’ or ‘dispensing’ power to allow defective wills to be admitted to probate. Such remedial legislation has generally been given a broad and robust interpretation.

This article will provide a survey of how validation powers have been applied in Canada, with a particular focus on the experience in British Columbia.

Manitoba leads the law

Prior to the reforms discussed in this article, the ‘formalities’ of will making were strictly enforced by Canadian courts and legislation. The rigidity of this ‘strict compliance’ approach could lead to injustice, and law reformers in Canada previously looked to the experience in Australia, where various states have implemented a validation power since the 1970s.[2]

The first validation power in Canada was enacted in 1983 by the Manitoba legislature. Section 23 of Manitoba’s Wills Act[3] was modelled on Australian legislation and permits a person to apply for an order declaring that a document is a valid will, even though it does not meet the legislative requirements. The court must be satisfied that the document ‘embodies’ the testamentary intentions of the will maker. This legislation was interpreted in a more generous manner than its Australian counterparts and a ‘substantial compliance’ approach was avoided.[4]

Although the provision was a useful tool to validate non-compliant documents, including documents with no witnesses, it also brought a level of uncertainty in the administration of estates, as any scrap of paper with testamentary ‘musings’ of the deceased might be capable of validation by the court.

The leading authority in Manitoba is the 1997 case of George v Daily.[5] The Manitoba Court of Appeal (the Manitoba Court) held that the crucial question in these cases was ‘whether the document expresses the animus testandi of the deceased – a deliberate or fixed and final expression of intention as to the disposal of his/her property on death’.[6] In this regard, the Manitoba Court relied upon earlier decisions of the Supreme Court of Canada dealing with holograph wills that, in turn, were based on pre-1837 decisions of the Ecclesiastical Courts of England and Wales relating to probate.[7]

Similar validation powers were enacted over the next decade by New Brunswick, Nova Scotia, Prince Edward Island and Saskatchewan. In these provinces, the courts also adopted the test from the George decision in Manitoba.[8]

Recent developments in Alberta and British Columbia

A decade ago, the western provinces of Alberta and British Columbia modernised their wills and estates legislation. The legislatures of both provinces enacted a form of validation power based on the Manitoba model. However, there are significant differences in the scope and effect of such legislation. The validation power contained in s.37 of Alberta’s Wills and Succession Act,[9] which came into force in February 2012, is not a broad dispensing power.[10] This provision requires the presence of a signature on the document before it can be validated. Section 37 further provides that there must be ‘clear and convincing evidence’ that the document was ‘intended by the testator to be his or her will or a revocation of his or her will’.[11]

The Alberta approach of requiring proof that the deceased intended that the subject document should, without more on their part, operate as their will is similar to the approach taken by Australian courts.[12]

British Columbia’s Wills, Estates and Succession Act (the BC Act) came into force in March 2014 and includes a broad dispensing power similar to New Zealand’s legislation.[13] Section 58 of the BC Act refers to validating a document that ‘represents’ the testamentary intentions of a deceased person. There are no restrictions, such as the signature requirement, nor any minimal level of compliance with the formalities of will making. In addition, British Columbia explicitly allowed for electronic records, such as computer documents, to be validated (similar to Australian and New Zealand legislation). Other provinces, like Alberta, have explicitly rejected this approach. The inclusion of electronic records creates an additional burden in estate administration to locate possible wills in the digital records of the deceased.

The province’s leading case is the British Columbia Court of Appeal decision in Re Hadley Estate,[14] which adopts the ‘fixed and final intention’ test from Manitoba and confirms that s.58 is to be given a large and liberal interpretation.[15]

The robust and generous interpretation of s.58 is best demonstrated by the decision in Re Hubschi Estate.[16] The deceased made a document on his home computer entitled ‘Budget for 2017’, which stated: ‘Get a will made out at some point … 5-way split for remaining brothers and sisters’. The evidence indicated that only the deceased had access to the computer as he was confined to his apartment for medical reasons. He had been raised in a foster home in British Columbia and the ‘brothers and sisters’ mentioned in the electronic document were his foster siblings. If he died intestate, the estate would have devolved under intestacy rules to blood relatives in Switzerland with whom the deceased had no relationship. The Supreme Court of British Columbia (the BC Supreme Court) validated the electronic document on the basis that the deceased had a fixed and final intention to benefit his foster siblings.

In the more recent decision of Re McGavin Estate,[17] the BC Supreme Court used s.58 of the BC Act to validate two reporting letters sent by solicitors to their client. The deceased had made handwritten notes on one of the letters listing the beneficiaries for her will. Factors such as the COVID-19 pandemic lockdown prevented the making of a formal will. The BC Supreme Court made an order that the documents constituted the deceased’s last will and referred to the New Zealand High Court decision in Estate of Feron as a helpful precedent.[18] In Feron, the court validated the notes made by a solicitor along with a chain of email correspondence between the solicitor and the client.

The validation power cannot be used to validate a will that is substantively invalid. This principle has been applied to the issue of ‘pour-over clauses’ (a question of essential validity), which are a common estate-planning tool in the US but remain invalid in Canada. In Re Quinn Estate,[19] involving a will prepared by a California lawyer for a British Columbia resident, the British Columbia Court of Appeal found that s.58 could not be used to validate a pour-over clause. The same result occurred in Waslenchuk Estate.[20] The will maker had lived in Connecticut for several decades and made a will and inter vivos trust pursuant to advice from a lawyer in that jurisdiction. The will maker then returned to British Columbia shortly before her death. The pour-over clause in the will was found to be invalid under British Columbia law (the law of the will maker’s last domicile) and could not be saved by s.58 of the BC Act.

The validation power will apply to estates of persons domiciled outside British Columbia if they own real property in British Columbia at the time of death. In Re Chou,[21] the BC Supreme Court validated a document made by a Taiwanese national in which she made a testamentary gift of land in Vancouver to her adopted daughter. Even though the deceased was domiciled in Taiwan, the BC Supreme Court had jurisdiction to make such an order, pursuant to the ‘conflict of laws’ provisions of the BC Act.

Latest development: Ontario

Ontario is the latest province to include a validation power in its wills and estates legislation. Reforms enacted in 2021 introduced s.21.1(1) to the Succession Law Reform Act (the Ontario Act), which allows the court to validate a non-compliant document if it ‘sets out the testamentary intentions’ of the deceased.[22] The language of s.21.1 of the Ontario Act is substantially similar to the language of s.58 of the BC Act. This provision applies to estates where the will maker died after 1 January 2022.

At the time of writing, there are no reported decisions pursuant to s.21.1 of the Ontario Act. In the unreported decision of Grattan v Grattan,[23] the Ontario Superior Court of Justice applied case law from British Columbia to validate an unsigned will that the will maker had reviewed and approved prior to her death.

Conclusion

The enactment of a validation power by legislatures across Canada helps avoid the frustration of testamentary intentions of a deceased person, as well as the unjust results that occurred under the former ‘strict compliance’ regime. At the same time, such legislation creates additional burdens in the administration of estates. There must be a sufficient search of the deceased’s records (including digital records for British Columbia estates) to determine the existence of any documents that may set out the deceased’s testamentary intentions.