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BC Follows Manitoba Law – The Power to Cure Otherwise Defective Wills

Following up on my recent to blogs on the Manitoba Court of Appeal case George v. Daily, that decision of the power to cure otherwise defective wills, has been followed in Manitoba and other jurisdictions in Canada, and might likely be followed in British Columbia under sections 58 and 59 of WESA.

McNeil v. Snidor Estate 2008 MBQB 187 another Manitoba decision, followed the George case.

In McNeil, the deceased executed numerous wills . His final will deviated dramatically from his previous five wills.

His final will lacked a second witness, and only witness saw the  deceased sign document.

His Executor brought an application to have the last will admitted to probate and passing of accounts.

The application was granted with the court finding that the final will was to be admitted to probate, as the Will embodied the  testamentary intent of the testator despite the will’s defects.

The Court found there was a reasonable explanation for the change in distribution of deceased’s estate over his previous wills, and there was no evidence to suggest that deceased lacked necessary testamentary capacity.

 

DISCUSSION

19        It is well established that imperfect compliance, even non-compliance, with the formal requirements of The Wills Act may be excused. However, it must be established that the document being propounded was intended by the deceased to have testamentary effect. The court must therefore be satisfied on a balance of probabilities that the writing embodies the testamentary intent of the testator or testatrix [George v. Daily, 115 Man. R. (2d) 27, [1997] M.J. No. 51 (Man. C.A.)].

 

20        In Kuszak v. Smoley (1987), 46 Man. R. (2d) 14, [1986] M.J. No. 670 (Man. Q.B.), this court considered whether to grant probate under s. 23 of The Wills Act with respect to a document similar to the one in question. As here, in that case, Mr. Kuszak had filled in a printed stationary form of a Last Will and Testament completed in his handwriting and signed on the last page. Although the Will was defective due to lack of appropriate signatures by witnesses, the court granted probate to the document as a whole after considering the following factors:

 

(1) the printed form was completed entirely by the deceased in his own handwriting and bore his signature in four places;

 

(2) the printed form identified the document as a Will and was completed properly by the deceased;

 

(3) the deceased was careful to deal with all of his estate and to appoint an executor;

 

(4) the date was inserted in four places; and

 

(5) there was nothing before the court that suggested that the document did not embody the intent of the testator.

 

21        With respect to the Last Will and Testament dated March 2, 2005, it was noted by counsel for the applicant that:

 

(1) the deceased revokes his earlier Last Will and Testaments and the specific dispositions therein, expresses his intent in respect of who should not receive the proceeds of his estate and disposes of the residue of his estate;

 

(2) the document appoints an executor and provides him with instructions for the management of the estate including funeral and burial arrangements;

 

(3) the document is entitled “Will” on the top of the first page;

 

(4) each blank space on the form, with the exception of the final space for the second witness and one space (where the name of the executor appears instead of the name of the testator) has been completed properly in the deceased’s handwriting;

 

(5) the deceased has signed the second and third page of the Will; and

 

(6) the deceased had Estelle Cummings sign the document as a witness, albeit at a later date.

 

22        In keeping with the rationale articulated in Kuszak v. Smoley, (supra), I am satisfied that all of these factors demonstrate it was Mr. Snidor’s intention that the testamentary document dated March 2, 2005 be effected. This is also supported by the evidence of the applicant whose evidence I find to be trustworthy and reliable, and there is no evidence before the court to the contrary.

 

23        I am also satisfied that there is a reasonable explanation for the change in the distribution of the deceased’s estate over his previous Last Will and Testaments as already noted. There is also no evidence before the court to suggest that Mr. Snidor lacked the necessary testamentary capacity and Mr. McNeil’s evidence supports a finding that he did. There is also no evidence in any way to impair the general presumption against intestacy which is applicable.

 

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