Formal Validity of Wills

Question 1

What does complying with formalities do?

Answer 1

• Ensures testator protected from undue influence

- Serves as evidence of intention

Question 2

Privileged wills

Answer 2

Those written by people under age but married or in military

Question 3

Attested wills

Answer 3

Most common form. Formal wills, attested means witnessed by other people

Question 4

Writing requirement

Answer 4

Will valid only when in writing

Question 5

What does in writing mean?

Answer 5

Printed, painted, lithograph, photographed, represented, reproduced in any visible form

Question 6

Murray v Halo

Answer 6

” (ditto mark)= writing, same as above

Question 7

Re Harris

Answer 7

Not specified what writing has to be on. Trapped under tractor and scratched onto tractor.

Question 8

Signature Requirement

Answer 8

• Don’t care about form of signature care about intention to give effect to the will
• So long as sufficient evidence it was best testator could do and that it constituted intention its okay

Question 9

Amanuensis

Answer 9

Someone who signs a will on behalf of another

-Can either sign your name or theirs, what’s important is you were asked to do it

Question 10

Re White

Answer 10

Facts: T had a stroke, could mentally affirm but physically could not sign. One of witnesses helped him move his hand to make a mark.

Ratio: A direction to sign a will has to be given in the presence of witnesses and testator has to be physically present telling them to sign

Question 11

Position of signature

Answer 11

Do not sign at the top then write it. Gift under signature or clearly established in handwriting generally not validated- inference that your wrote it after. Can prove otherwise but uphill battle

Question 12

Re Riva

Answer 12

Demonstrates that courts will try to give effect to weird signatures. Portion she wanted to sign too small so signed the side.

Question 13

Yen Estate

Answer 13

Facts: 4 daughters and one was murdered rewrote, granddaughter wants intestacy for tries to invalidate

Omnia Prae: all things are presumed to have been done correctly. Can be relied upon when no evidence whether or not they signed before or after disposition written in.

Question 14

What is the standard?

Answer 14

Balance of probabilities- if it looks like testator signed last even if position is off they will probate

Question 15

How many witnesses for attestation?

Answer 15

2

Question 16

Process

Answer 16

Testator makes/ acknowledges signature in front of 2 witnesses present at the same time. Must see testator sign.

Question 17

Witnesses signature

Answer 17

Have to sign in the presence of the testator, testator must see witness sign

Question 18

Chesline v Hermastin

Answer 18

Facts: dispute as to the order in which parties signed and whether or not even saw testator sign. Evidence showed one witness in a rush signed before testator.

Ratio: not probated, signature of testator must be written or acknowledged by the testator in the actual visible presence of each witness together before either of them attests the will

Question 19

Age requirement for witness?

Answer 19

Must be age of majority

Question 20

Re Gunston

Answer 20

Facts: neither witness saw signature when they came in T was lying down her pen, did not see signature and she did not talk about signing it

Ratio: Not sufficient acknowledgement unless witnesses saw or might have seen signature—not sufficient to say “my signature is in there” if they could not see it. Don’t need to see it but need opportunity to see it.

Question 21

Beneficiaries/ Executors as witness

Answer 21

Not invalid but may invalidate specific gift

Question 22

Incorporation by reference

Answer 22

Exception if the document is unattested/ otherwise does not conform with formalities. May be incorporated into valid will by reference.

Question 23

Rules to incorporate by reference

Answer 23

1) Document you are seeking to incorporate by reference has to exist at time you make your will (has to predate will)
2) Will must refer to this document/ specify that it already exists (shouldn’t be one subject to change)
3) Document must be referred to with sufficient precision on the will (give specifics and sufficiently describe it so court can identify it)

Question 24

Re Goods of Smart

Answer 24

Facts: wanted to incorporate a book but didn’t exist at time of will. Made codicil but still didn’t mention book

Ratio: Incorporation cannot use future language. Not sufficient to confirm will in codicil if will continues to refer to document in future tense

Question 25

Contrast to Re Goods of Smart

Answer 25

If the wording in your will is neutral then codicil reaffirming will can validly incorporate by reference

Question 26

Holographic wills

Answer 26

A will made by testators handwriting and signature with no witnesses/ attestation

Question 27

3 common scenarios for holographic wills

Answer 27

1) Suicide notes
2) Instructions to a lawyer concerning the making of a formal will
3) What happens when you have a mix of handwritten and printed material someone wants to probate

Question 28

Bennet v Grey

Answer 28

• Instructions concerning a formal will

- Need to have clear intention to be a will

Question 29

Canada Permanent Trust Co v Bowman

Answer 29

Facts: Document in her handwriting naming “bequests” some expressions had been crossed out and replaced by others

Ratio: court found this was a fixed and final expression of what she wanted done

Question 30

Mixed print and writing issues

Answer 30

• Must be wholly in handwriting of testator
• If use a standard will form if no witnesses there is an issue
• Court will probate still IF can construe just from the handwriting portions

Question 31

Re Forest

Answer 31

Used a printed will form and wrote in some gifts by hand. However instead of naming executor or residual beneficiary they didn’t. Court said not probated. Could not construe from just handwriting

Question 32

Re Phillip

Answer 32

Identical facts to Re Forest but probated. Specific gifts can be given out if executor not named. Really avoiding intestacy here. Courts strictness makes a difference.

Question 33

Re Clark

Answer 33

Holographic will. Printed at the top. Printing doesn’t matter its the position but there was evidence he signed after. Probated.

Question 34

Re Dixon Marsden Estate

Answer 34

Facts: Typed piece of paper, each pp initialed, dated at top, signed at bottom, wrote words “the above mentioned are in short those whom my estate is left” above signature

Ratio: Argued for holographic will to incorporate by reference. Not probated because: (1) while it can be on same sheet of paper not seperate enough, (2) need something capable of being probated to incorporate it into, (3) not in handwriting so needed a witness (if in handwriting we can assume intention)

Question 35

Dispensing or validating power

Answer 35

Allows a court if it is satisfied that the will actually embodies the testamentary intentions of the deceased to probate a will despite the fact that a will doesn’t comply with all the legal formalities required

Question 36

Main questions to ask when using dispensing/ validating powers

Answer 36

1) is this document authentic and 2) does it represent the deceased testamentary intentions
* if satisfied with these two minor formalities can be overlooked*

Question 37

Sutherland v Sutherland Estates

Answer 37

Facts: beneficiary witnessed will, NB disqualifies beneficiary from getting a gift they witnessed.

Ratio: substantial compliance doctrine couldn’t be used for this kind of mistake, just for execution flaws

Question 38

Furlotte v McAllister

Answer 38

Facts: note in handwriting but unsigned found by kids, read by all them but they lost it. Daughter re-created in her own handwriting

Ratio: court probated

Question 39

Re Degrace

Answer 39

Oral evidence that draft expressed testators intentions. Probated.

Question 40

Electronic Wills

Answer 40

Largely impermissible in Canada however they have been probated in BC and QC under their dispensing powers

Question 41

Privileged Wills

Answer 41

Person in Forces may make a will by writing signed by them or other person in their presence and by their direction without any other formality required. No need for holographic, can be typed. No need for witness