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What Makes It a Will?

Special costs unfair

Quinn Estate v Rydland 2019 BCCA 91 visited the old Chestnut Bennett v Toronto General Trusts to set out the bottom line of what makes a document a will.

Section 58 of WESA enables a court to give testamentary effect to documents that were intended to be testamentary. It does not enable a court to give testamentary effect to a document that the will maker never intended would be a will. It is clear on the evidence that the Trust was never intended by the Deceased to be a will, or a testamentary document of any kind.

69. The best evidence of whether a writing was intended to be a testamentary act is the document itself: Bennett v. Toronto General Trusts Corp., 9 D.L.R. (2d) 271 (MBCA) at 375, aff’d [1958] S.C.R. 392 [“Bennett’]. In that case the court of appeal gave significant weight to the fact that the letter in issue did not purport to be a will. Similarly, the Trust was and is a revocable, amendable inter vivos trust that reserved for the will maker the ability to change his testamentary dispositions at any time without complying with the formalities.

The facts in Bennett v Toronto General Trusts revolved around whether the following letter amounted to a halograph will or not.

The Court held that it did not- some of the case’s passages are :

There is no controversy, either in the reasons for judgment in the Courts below, or between the parties, that under the authorities, a holographic paper is not testamentary unless it contains a deliberate or fixed and final expression of intention as to the disposal of property upon death, and that it is incumbent upon the party setting up the paper as testamentary to show, by the contents of the paper itself or by extrinsic evidence, that the paper is of that character and nature: Whyte et al. v. Pollok2; Godman v. Godman3; Theakston v. Marson4.

6 Whether the letter of September 27, 1952, contains per se a deliberate or fixed and final expression of intention must be determined by the phrases immediately preceding and following the intermediate part of the letter where the wishes of Mrs. Gray are expressed; for, read as a whole, the letter has one single subject-matter, indicated as follows by Mrs. Gray: “I Promised to let you know how I would like my will to be made out.”

7 In the opening and closing phrases of the letter, Mrs. Gray conveys to Mr. Dysart sentiments of unreserved trust, reliance and dependence. Born, as admittedly shown by extrinsic evidence, out of an intimate relationship of many years between Mr. Dysart, on the one hand, and Mr. and Mrs. Gray and their children, on the other, these sentiments were those accompanying the mind of Mrs. Gray when, after expressing them, she wrote: “I will try to outline the way I would like to leave the little I have.” And having done so, she closed the letter by informing Mr. Dysart that she would be in Winnipeg in a few days and that she would call him.

8 I am unable to dismiss the view I formed that, read as a whole and according to its ordinary and natural sense, this letter amounts to nothing more than what is a preliminary to a will. While Mrs. Gray indicated to Mr. Dysart the legacies she then contemplated her will to contain, it is clear, in my view, that she did not want that letter to operate as a will. Indeed, by her letter, she is committing to future consultation with Mr. Dysart both the finality of her decisions, if not of her deliberations, and that of the form in which they should eventually be expressed in a regular will, the preparation of which is entrusted to Mr. Dysart himself. If this interpretation properly attends the document, the letter has not per se, and cannot acquire without more, a testamentary nature, and the proposition stated in Godman v. Godman, supra, at p. 271, “that a document which is in terms and instruction for a more formal document may be admitted to probate if it is clear that it contains a record of the deliberate and final expression of the testator’s wishes with regard to his property

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