It is clear that Manitoba Case Law Re WESA Directs the Court to Determine the Testator’s fixed and final intention re the Contents of the Will, as was discussed in Prefontaine v. Arbuthnott 2001 MBQB45.
The Prefontaine case may well give assistance to BC lawyers seeking guidance for S 58 of WESA, being the curative powers of the Court to cure defective wills.
The testator died in 1999 leaving a pre-typed will form which was partially completed.
There were also handwritten insertions in the will form that were made in different coloured ink on different dates, the last being made in 1982 .
The Testator had no spouse or children but had one surviving sibling who had 12 children, most of whom also had children. The Testator wrote that she had remade her will in 1982 in favour of her surviving brother’s “Son and Sons Prefontaine Only [word Only underlined] starting by the younger Raymon then Antoine and Rene and Sons [word Sons underlined]”
The Court determined that document could be admitted to probate and issue of proper construction of document arose:
Was the Estate to be divided into three equal shares, one to Raymon, one to Rene and one divided equally among sons of Antoine?
The wording of the document was ambiguous since there was general desire to benefit male descendants, but also omission of certain of his brother’s sons without explanation.
Also, there was no indication whether the estate was to bequeathed to brother’s surviving sons or whether each son of nephews Raymon, Antoine and Rene were also to receive portion.
The Court however, court had an obligation to attempt to determine testator’s intentions and give them effect.
The Court had to determine what objective meaning could be given testator’ s words given her knowledge at the time the words were written.
The words indicated that rightly or wrongly, the testator had chosen to favour male descendant of family, and by naming particular nephews and their sons, the testator had indicated she intended to benefit them to exclusion of unnamed nephews. The word Sons after nephew’s name indicated intention to benefit a named nephew and if he was deceased, then his sons, and not to add sons as additional beneficiaries.
The Law: Contents of Will
22 The provisions of the Act determine whether a document is capable of being admitted to probate. Generally speaking, a will is valid only when it is in writing; it is signed by the testator; the testator makes or acknowledges the signature in the presence of two or more witnesses present at the same time; and two or more of the witnesses attest and subscribe the will in the presence of the testator. These have become known as the formal requirements of a will.
23 The Act, however, also provides for a will to be valid if it is wholly in the person’s own handwriting and signed at its end by the person, without formality, and without the presence of, or attestation or signature by a witness. This is known as a holograph will.
24 Over the years, a number of situations have arisen whereby wills did not meet either the formal or the holograph requirements of the Act and have not been admitted to probate because of some defect in the manner in which they were executed or prepared. As a result, the Legislature enacted s. 23 of the Act. That section originally provided that where, upon application, if the court was satisfied that a document or any writing on a document embodied the testamentary intentions of a deceased, the court could, notwithstanding that the document or writing was not executed in compliance with all the formal requirements imposed by the Act, order that the document or writing be fully effective as though it had been.
25 Early cases seeking to apply that section interpreted it as requiring some attempt to comply with the Act. In 1995, the section was amended to the effect that the document may be accepted by the court whether or not it is executed in compliance with any or all of the formal requirements imposed by the Act.
26 The leading case since the reenactment of s. 23 is that of George v. Daily, supra. In that case, the testator had met with his accountant (the intended executor) and had advised him of changes he wished to his existing will. The intended executor forwarded to a lawyer the revised will with a letter of instructions for the preparation of the new will. The testator died before the new will could be prepared for signature. The intended executor applied for advice and direction of the court. At the Court of Queen’s Bench, the letter of instructions was declared fully effective as though executed in compliance with all the formal requirements of the Act.
27 While the trial judge accepted the document as being an expression of the deceased’s testamentary intentions, the Court of Appeal did not. In reaching his decision, speaking for himself and Scott C.J.M., Philp J.A. reviewed the jurisprudence, the purpose behind the enactment of s. 23 and the reason for the formalities of the Act. He concluded that while the Legislature had clearly indicated it was not necessary that the document presented to the court be in compliance with, or was even attempted to be in compliance with, the formalities of the Act, it was necessary that the document be seen by the court as a document which the deceased intended to have testamentary effect. He stated, at pp. 41-42:
[58] The Commission did not recommend that the requirements and formalities of the Act be revoked, or that testamentary law be profoundly altered. And, in my view, the enactment of s. 23 did not do so. The section must be interpreted and applied in the context of all of the provisions of the Act and the jurisprudence which has developed over the centuries.
[59] It remains a fundamental and universal proposition “that nothing can receive probate which was not intended to be a testamentary act by the testator” . . . . ( . . . The principle remains the same: the intention that the instrument record the final (but revocable) wishes of the deceased as to the disposal of his/her property after death.)
[60] Section 23 can be invoked to give effect to the testamentary intentions of a deceased in the face of imperfect compliance, even noncompliance, with the formalities of the Act. Section 23 cannot, however, make a will out of a document which was never intended by the deceased to have testamentary effect.
28 He then further stated, at pp. 42-43:
[64] The term “testamentary intention” means much more than a person’s expression of how he would like his/her property to be disposed of after death. The essential quality of the term is that there must be a deliberate or fixed and final expression of intention as to the disposal of his/her property on death . . . .
[65] In my opinion, these are the principles which must be applied in the determination under s. 23 as to whether or not a document or writing embodies the testamentary intentions of the deceased. Whether it is the deceased’s own instrument or the notes or writing made by a third-party, the crucial question to be answered is 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.
29 In summary, it is necessary for the court to be satisfied that the document is one that expresses Miss Prefontaine’s true intentions with respect to her estate.
30 Counsel for the applicant argues that on the issue of whether it expresses testamentary intentions, the wording of the document is of less importance than its existence. The issue of what can be determined from the wording should be considered when one looks at the issue of construction of the terms of the will as opposed to whether or not it is intended to be a will in the first place. I agree with that statement.
31 I was referred to the case of Belser v. Fleury (1999), 27 E.T.R. (2d) 290 (Man. Q.B.), a decision of my colleague Mr. Justice Wright where he was presented with a factual situation similar to the one here. In that case, the document purported to be the testator’s will consisted of a stationer’s form with the blanks in some parts, but not all, filled in with handwriting. The applicant said the document was given to him by the deceased the day after it was completed. It was not found amongst the personal effects of the deceased. Given the provisions of s. 23 of the Act, Wright J. had no difficulty in concluding that if the document in question could be established as having been made by the deceased, it adequately identified his testamentary intention. However, on the issue of whether it had indeed been made by the deceased, he did not feel that the proof was sufficient. He noted that no one had seen the deceased make the document. The evidence on handwriting was conflicting. In the circumstances, Wright J. found that considerably more evidence was necessary to satisfy the court that the handwriting in the document was that of the deceased. At the very least, some expert evidence would have been required.
32 I believe the Belser case is distinguishable from the facts at hand. In this case, the two independent witnesses, namely, the bank employees, were able to identify the handwriting as being that of Miss Prefontaine. They have also identified the signature on the envelope, which is in the same ink as the last four lines of the handwriting on the back of the document proper.
33 The evidence of those two witnesses has not been challenged by cross-examination. It comes from sources that are not interested in the outcome of the case. It bears significant weight in my view. Admittedly, the bank employees are not handwriting experts nor does either affidavit indicate that they have compared the handwriting on the document with the signature card on file at the bank. Nevertheless, they were familiar with Miss Prefontaine’s handwriting and signature. I accept their evidence that it is the handwriting and the signature of Miss Prefontaine on the document and on the envelope.
34 Of more concern is the lack of evidence as to how the document came to be in the applicant’s possession and whether the document is an expression of Miss Prefontaine’s final testamentary intentions. While I was advised by counsel for the applicant at the hearing that I could take as an inference that the document was found amongst Miss Prefontaine’s possessions, there is no direct evidence on that point. Nor is there any direct evidence of what type of search was conducted to verify that no other document or similar document was found so as to confirm that Miss Prefontaine may not have changed her mind from 1982 to the date of her death.
35 While the lack of evidence on that point does raise a concern, the nature of the document, namely, a will form, and the words used by Miss Prefontaine lead me to conclude that the document is one which expresses her testamentary intentions at various times in her life. I recognize that the applicant is seeking to give weight to a document that was prepared in part some 27 years before Miss Prefontaine’s death. However, when one takes the document in its entirety, there is a consistency in the intentions that are expressed. The fact that the different notations were made at different times in Miss Prefontaine’s life would suggest that her intentions remained the same. The fact that she used a will form brings further credence to the suggestion that this was a document prepared by Miss Prefontaine with a view of expressing her testamentary intentions. The applicant’s evidence with respect to a conversation in the summer of 1998 where Miss Prefontaine referred to a will giving him, his son and his brother a benefit is consistent with the existence and contents of the document.
36 The suggestion that Miss Prefontaine was an eccentric who was subject to making statements out of keeping with her surroundings does not equate with a finding that she was not mentally capable of appreciating her situation sufficiently to formulate her testamentary intentions. The respondent Angela Dubois’ affidavit does not say when Miss Prefontaine allegedly made the statements or exhibited the eccentric conduct. The critical time would have been in July 1982 or earlier when it appears that she formulated her thoughts on the document. Given again that the uninterested bank employees had no difficulty in appreciating her directions or dealing with her in the last years of her life, I would have required some cogent evidence of lack of mental competency before accepting an argument that she was not capable of making her will.
37 In summary, I accept the portion of the document written in green ink as expressing the final testamentary intentions of Miss Prefontaine formulated on July 12, 1982, and order that it be fully effective as though it had been executed in compliance with all the formal requirements imposed by the Act in accordance with s. 23.”
