George V. Daily And Manitoba’S Substantial Compliance

A review of the seminal George v Daily substantial compliance case and its treatment in Manitoba today.

The Wills Act

Substantial compliance legislation has made its way through provincial legislatures over the past 25 years. Lawmakers have moved further from stringent strict compliance requirements and towards pragmatic laws that take into account clear extrinsic evidence of a testator’s fixed and final testamentary intentions. Manitoba was the first Canadian province to enact curative provisions in its succession legislation. In 1997, the provincial legislature passed the Wills Act.  Section 23 outlined the Court’s “dispensation power”:

23 Where, upon application, if the court is satisfied that a document or any writing on a document embodies

(a) the testamentary intentions of a deceased; or

(b) the intention of a deceased to revoke, alter or revive a will of the deceased or the testamentary intentions of the deceased embodied in a document other than a will;

the court may, notwithstanding that the document or writing was not executed in compliance with any or all of the formal requirements imposed by this Act, order that the document or writing, as the case may be, be fully effective as though it had been executed in compliance with all the formal requirements imposed by this Act as the will of the deceased or as the revocation, alteration or revival of the will of the deceased or of the testamentary intention embodied in that other document, as the case may be.

Many other Canadian jurisdictions have since followed this model in their own statutory frameworks, though with some differences. A new provision in Ontario’s Succession Law Reform Act, which recently came into effect in January 2022, does not follow the Manitoba Act‘s use of “any or all of the formal requirements.” This omission provides less latitude to the Court in validating formally non-compliant wills. Prince Edward Island’s Probate Act does not include a validating provision for unsigned testamentary documents. Nonetheless, the Manitoba basic substantial compliance framework continues to inspire other provincial legislatures and courts to this day. 

George v. Daily: The “Fixed and Final Intention” Test

George v. Daily, 1997 CanLII 17825 (MB CA) is the leading provincial authority on the scope of the court’s dispensation power pursuant to Section 23 of the WA. In this decision, John Daily, (the deceased) had given instructions to his accountant, Dale George, to change his existing will. The revised version would have left his children out of his will and divided the residue of his estate amongst several charities. George then forwarded a letter with these instructions to a lawyer. The lawyer met with Daily who confirmed his testamentary intentions. However, the lawyer requested that Daily provide a medical certificate confirming his mental competency before executing his revised will. Daily died two months after this meeting, leaving no evidence that he had obtained this medical certificate, or that his lawyer had prepared the revised will.

During proceedings, George applied to the Court under Section 23 of the WA that his letter be considered fully effective as though in compliance with the formal requirements of the Act. At first instance, the trial judge validated the letter. One of Daily’s sons appealed the judgment. At the Manitoba Court of Appeal, the Court found that George’s letter did not reflect Daily’s true testamentary intentions, and was at most a letter containing instructions for preparing a new will, not a valid new will unto itself. In his decision, Philp J.A. clarified that “the term “testamentary intention” means much more than a person’s expression of how they would like their 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.” The letter, and other supporting contextual factors—such as the fact that Daily had not followed up with subsequent correspondence before his death—demonstrated that he had not met the legal threshold for a testamentary intention.

Provisional Documents until a formal will is prepared: when can they be probated?

Daily remains the authoritative case on Section 23 in the province. The 2016 case Timm v. Rudolph considers the decisions in Daily at length. In this case, ​​Shirley Timm-Rudolph died a few months before her husband, Edwin. Both Shirley and Edwin had their own children who predated their marriage, Teena Timm and Simone Rudolph respectively. Edwin’s daughter, Simone, had little contact with either Shirley or Edwin throughout her adult life. 

Towards the end of her life, Shirley was diagnosed with cancer, and eventually entered palliative care. While in the hospital, Shirley met with an articling student to prepare a will and give instructions on how she wished to dispose of her assets. She named Teena as executor of her estate, and made her the beneficiary of the rest and residue of her estate. Under the heading “Beneficiaries: (Special Bequests),” Shirley indicated a conditional gift of half the interest in a cottage she co-owned with Edwin on the condition that he would have full use and enjoyment of it during his lifetime. The articling student indicated in his notes that the cottage would be jointly owned by husband and daughter. Shirley signed these notes.

The student then prepared a typewritten will for Shirley which made no mention of this special gift. He also prepared a transfer of land for the cottage property naming Teena and Edwin as joint tenants. He went to the hospital to have Shirley sign the documents, but she had passed away by the time he arrived. Teena then applied to have the notes validated under Section 23 of the Act. If the notes would not pass probate, Edwin’s daughter Simone would have an interest in the cottage as the sole beneficiary of his estate.

The Court considered the limitations of its dispensation power, as well as the definition of “testamentary intention” deliberated on in Daily. Writing for the Court, Justice Robert Dewar acknowledged that Daily also provides guidance on probating will instructions given to lawyers. They could be admitted to probate, but only “if there is evidence that the testator had the lasting intention that the document should be dispository and operate provisionally until a more formal will was prepared.” 

The Court then considered whether Shirley meant for the articling student’s notes to operate provisionally until he could prepare a more formal will. Based on the student’s witness testimony, Dewar J determined that the student had obtained Shirley’s signature for the purpose of avoiding a fee dispute, not to be able to submit them to probate. Moreover, he offered to assist Shirley in preparing a holograph will, to which she refused. Finally, there were discrepancies between the proposed will and the notes he had taken. For these reasons, the Court could not find that the notes met the threshold of expressing Shirley’s testamentary intentions, and declined to admit them to probate. Simone received an interest in Shirley’s estate. Timm v. Rudolph shows that the Court carefully considers extrinsic evidence when determining whether non-compliant documents reflect the deceased’s testamentary intentions.


Daily indicates that, although testators can and do change their minds, not every expression or piece of correspondence represents their final testamentary intentions. The Court’s ability to read into their true intentions is not unmitigated. In his concurrence, Helper J.A. noted that a document such as the one at issue, which was a letter written on behalf of the testator by someone else, would require a considerably stronger amount of supporting evidence in order to be considered the testator’s true testamentary intentions. Correspondingly, the onus on an applicant under Section 23 is only satisfied by “substantial, complete and clear evidence relating the deceased’s testamentary intentions to the document in question.” George v. Dailey has been cited widely by courts in almost every other jurisdiction with substantial compliance legislation, including Alberta, Manitoba, Saskatchewan, Nova Scotia, and New Brunswick. With Ontario most recently enacting substantial compliance legislation this year, jurists in that province may look to this case for guidance.

Timm v. Rudolph provides several helpful takeaways for estate lawyers. Notes may be probated if an applicant can show that they were meant to operate as a provisional will until a formal one was prepared. In order to determine this, the Court considers extrinsic evidence: Were the notes signed? Did the testator have an opportunity to prepare a formal will and decline to do so? Do the notes contradict other wills? In order to ensure clarity when preparing wills, testators and executors should take note to clarify which provisional documents are meant to be simply that–provisional–and which can stand in as formal testamentary instruments. Manitoba courts have shown from Daily to Rudolph that the legal threshold for a testator’s “fixed and final testamentary intentions” is high.

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