Willmakers often leave an unsigned, un-witnessed and undated memorandums alongside his or her Will that usually purports to dispose of largely sentimental valued personal effects and household items, that may or may not be of legal effect.
The question generally is whether the memorandum was specifically referred to in the will and came into existence at the time of the will, so that it may be incorporated as part of the will, or failing same it is of no legal effect.
Studer Estate v Studer 2009 SKQB 366, a Saskatchewan case discusses the law:
“ The case of Chamberlain, Re (1975), [1976] 1 W.W.R. 464 (Sask. Surr. Ct.) as establishing in Saskatchewan the threshold requirement for incorporating unattached memorandum referred in a will. These conditions must firstly all exist, as follows:
- The document must be referred to in the will;
- The reference in the will must be sufficient to identify the documents;
- The document must be an existing document, and not one that is to come into existence at a future date.
36 Before discussing the above, I also agree with counsel the onus to satisfy that the three essential criteria have been met is placed upon the party submitting the document for incorporation (See: Thomas Estate v. Gay, [1996] O.J. No. 2901 (Ont. Gen. Div.) (this onus is the usual civil standard of the balance of probabilities).
37 My review of the three conditions is as follows:
- The document must be referred to in the will.
38 I find that, arguably, the Memorandum was referred to in the Will and that paragraph 3(d) states:
…to the charities outlined in the memorandum kept with this my Will. …
The memorandum itself makes reference to (d) of the Will of Berna Studer. However, as set out below, this is not determinative of these matters.
- The reference in the will must be sufficient to identify the documents.
39 Again, arguably, this may be the case here. The wording of the Will makes reference to a Memorandum and the Memorandum makes reference to paragraph (d) of the Will of Berna Studer. Again, this is not determinative.
- The document must be an existing document, and not one that is to come into existence at a future date.
40 However, this condition clearly has not been met here. There is no evidence that the Memorandum was “an existing document” and I find that the Memorandum was one “to come into existence at a future date”.
41 Accordingly, since all three conditions must be met, then the Memorandum cannot be incorporated into the Will. As indicated, it certainly does not have stand-alone testamentary status.
42 The Janice Wilkes’ letter has no testamentary status as indicated and clearly came into existence a considerable time after Berna signed her Will. Accordingly, it cannot be incorporated into the Will.
