What are “Testamentary Intentions” Under WESA

Yesterdays blog relating to the use of Manitoba case law in the case George v. Daily 1997  3 WWR 379 is continued in today’s blog which examines what is required in the nature of “testamentary intentions” for the court to remedy an otherwise imperfect will.

The document under consideration was a letter  from and the accountant for the deceased to the lawyer for the deceased setting out the testator’s instructions for the preparation of a will, and whether the document accurately set out the “testamentary intentions” of the testator.

The deceased died without ever signing a will and the issue before the court was whether or not the letter from the accountant to the lawyer disclosed “testamentary intentions”  that would qualify  so as to allow the court to fully affect  the document as a testator’s will under Manitoba section 23 of the Wills Act.

The court held that the document was not a document that  disclosed testamentary intention and thus was not found to be a will.

The court started with the general proposition that not every expression made by a purpose, whether made orally or in writing, respecting the disposition of his or her property on death, actually embodies his or her testamentary intentions.

The court found that the term testamentary intention means much more than a person’s expression of how here she would like his or her property  to be disposed upon death. The essential quality of the term is that therefore must be a deliberate or fixed and final expression of intention as to the disposal of his or her property on death

see Canada Permanent Trust CO. v Bowman ( 1962) SCR 711

Essentially the court concluded that whether it is the deceased own instrument or the notes or writing made by a third-party, the crucial question to be answered is whether the document expresses a deliberate or fixed and final expression of intention as to the disposal of the deceased’s  property on death.

The court also emphasized that another of the principles which of survive the enactment of Manitoban’s  dispensation powers is that the court must be satisfied that the deceased knew and approved of the contents of the document which is presented for probate ( see Guardhouse v Blackburn ( 1866) LR1.

The court concluded that the requirement that the deceased must know and approve of the contents of the will which is presented for probate,  as often being considered as a question of evidence rather than of substantial of law, but the rule takes on a heightened significance when the document is a third-party one.

Many of the comparable cases that the Manitoba courts have examined relate to holograph wills which until the present have not been legal in British Columbia.

In Bennett v Toronto General Trusts Corp ( 1958) SCR 392, the Court stated:

80.Thereis  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 on 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. (The emphasis is in the original)

81   The same onus, in my view, is imposed upon the applicant when probate of a document is sought under s. 23 of the Act. The principle which guides the court is to endeavour to carry out the testator’s intentions: Re Eames Estate. Tritschler J. (as he then was) expressed the “guiding principle” in Re Kemp Estate (1954), 11 W.W.R. 624 (Man. Q.B.) (at p. 628) as: “to endeavour to carry out the testator’s intention if, without undue strain, a testamentary intention can be ascertained.” At the same time, one cannot ignore the admonition of Nicholson J. in Re Lobato Estate: “… the greater the departure from the requirements of formal validity …. the harder it may be for the court to reach the required state of satisfaction.”



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