Overview
An ongoing and central debate amongst estate law jurists concerns the level of compliance with statutory requirements wills undergoing probate must meet. In recent years, several Canadian provincial jurisdictions have updated their formal requirements for the validity of wills, signaling a widespread shift from the strict to the substantial compliance doctrine. The debate over strict versus substantial compliance highlights two opposing attitudes courts can take when applying their jurisdiction’s wills, trusts, and estates laws. Strict compliance proponents argue it prevents courts from overstepping in their roles to infer the testamentary intentions of the deceased. Those in favour of substantial compliance claim their framework allows courts to truly serve the fixed and final intentions for the disposition of a decedent’s estate.
Newfoundland and Labrador remains one of two Canadian jurisdictions still functioning under a strict compliance framework. Other provinces like New Brunswick have enacted much more flexible substantial compliance legislation, with room in the jurisprudence to clarify the scope of this power. Other provinces like Prince Edward Island have adopted a middle ground, advocating for partial compliance legislation that still requires the testator to have met certain statutory requirements for a document to be probated. This article will discuss each Maritime province in detail.
New Brunswick
The New Brunswick Wills Act curative provision is almost identical to the provision found in Manitoba’s Wills Act, the first curative provision passed in a Canadian provincial wills act. Section 35.1 of New Brunswick’s legislation reads:
35.1 Where a court of competent jurisdiction is satisfied that a document or any writing on a document embodies
(a) the testamentary intentions of the deceased, or
(b) the intention of the 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 the formal requirements imposed by this Act, order that the document or writing is valid and fully effective as if it had been executed in compliance with the formal requirements imposed by this Act.
A recent curative provision decision in New Brunswick is Marsden Estate (Re), [2017] N.B.J. No. 295. At issue was whether the Court could probate a will without a signature. Jean Agnes MacDonald Marsden, the deceased, drafted a will with her lawyer. The document planned to leave only $100 to two of her children and divide the residue of her estate equally among the remaining three. Marsden died before her lawyer brought the will for execution. Despite not having been able to sign her will, evidence at Court indicated that the will was carefully read and explained to Marsden in the presence of witnesses as well as physicians who attested to her mental capacity. The Court exercised its discretion under Section 35.1 of the WA to validate Marsden’s non-compliant will.
A more recent decision by the Court gives greater insight into its decision-making process regarding Section 35.1 issues. In Estate of Perley McEvoy, 2020 NBQB 11, when Perley McEvoy (the testator) died, his sons could not find his last will and testament. They found a one-page handwritten document that their lawyer advised them did not constitute a valid will. McEvoy’s brother applied to have this document proved as a valid Will and have his nephews’ Letters of Administration revoked. The document bequeathed a homestead of McEvoy’s brother. If the document was found to be invalid, the homestead would pass to the two sons by way of intestacy.
McEvoy signed the document and had it witnessed. The Court also found, based on evidence before it, that the letter was very likely in McEvoy’s handwriting. The Court also cited “indirect” evidence supporting the letter was a valid testamentary instrument, saying that its dispositions mirrored how McEvoy handled his property during his life. Based on all of the intrinsic and extrinsic evidence, the Court found that the document constituted a valid holograph Will. It is clear from this decision that the New Brunswick Probate Court deals liberally with its substantial compliance legislation. The Court in McEvoy was satisfied by a document signed by only one witness, despite the statute requiring two. The Court was also satisfied on the balance of probabilities that the document in question was written and signed by the testator. Courts in New Brunswick are evidently eager to ensure they do not have to reject otherwise convincing testamentary instruments.
Newfoundland and Labrador
The only Canadian jurisdictions not to have passed substantial compliance legislation are Newfoundland and Labrador and the Northwest Territories. For Newfoundland and Labrador, the importance of meeting the statutory signing and witnessing requirements for wills lies in Section 2 of the Wills Act. Nonetheless, the Court has been able to apply flexible interpretations of the requirements under Section 2. This pliability was demonstrated in Re The Estate of Alec G. Henley, which concerned the validity of two codicils. The two witnesses of the execution of these codicils provided evidence to the Court that they had not seen the testator, Henley, sign the documents before signing on as witnesses. Nonetheless, the Court decided based on extrinsic and contextual evidence that they could validate the codicils under Section 2, which requires testators to sign wills and codicils “in the presence of” at least two witnesses. The evidence demonstrated that the witnesses were heavily involved in helping Henley prepare the codicils and had signed on as witnesses in front of him, thereby ensuring that both the witnesses and the testator knew what was happening.
This creative legal reasoning in Henley concerning Section 2 suggests that the Court may seek other flexible approaches to the strict compliance requirements in the Wills Act. Justice Thompson, in his reasons, hints at the intention behind substantial compliance legislation: “So in the face of these circumstances, I don’t think it is appropriate for me to defeat what appears to be a very clear intention of the execution and obtaining of confirmation by witnesses under section 2(1).” In the wake of the COVID-19 pandemic, the legislature passed several emergency regulations allowing greater flexibility for executing and witnessing wills due to the public health crisis, including permitting audio-video technology for witnessing wills. These emergency measures, as well as the Court’s decision in Henley, suggest that further consideration of codified substantial compliance legislation may be prudent in the near future to bring Newfoundland and Labrador up to date with the rest of Canadian succession law.
Nova Scotia
Most jurisdictions in Canada have adopted a substantial compliance provision to their Wills Acts. This more lenient approach allows courts to validate otherwise statutorily noncompliant documents and serve the testator’s fixed and final testamentary intentions. Similar to Newfoundland and Labrador, before Nova Scotia officially enacted substantial compliance legislation, its Superior Court applied a flexible approach to its then-strict compliance requirements in Johnston Estate, Re, 2001 NSSC 133 (NSSC). Section 8A of the Nova Scotia Wills Act was subsequently amended in 2006, codifying the province’s substantial compliance framework. The Court has since considered its power of discretion pursuant to Section 8A of the Act in a number of cases, including: Komonen v. Fong, 2011 NSSC 315, Hayward v. Hayward, 2011 NSCA 118, Jones Estate (Re), 2017 NSSC 300, and MacKinnon v MacKinnon Estate, 2021 NSSC 272.
At issue in Komonen v. Fong was if a document found in the testator’s home contained his fixed and final testamentary intentions, and thus could be validated pursuant to Section 8A. Dannie Wing Fong executed a will 13 years prior to his death. After his death, a printed will was found in his home, with some portions completed in pencil. The document was signed and dated in pencil, though the signature was not witnessed. Other conflicting documents were found in Fong’s home, including a trust document, a partially completed will and power of attorney planning document, and a blank printed will form.
Fong’s niece applied to have his second will probated, which had been signed but not witnessed. The Court weighed whether this document reflected Fong’s testamentary intentions. Supporting evidence included the facts that the document was signed, dated, and was based on a pre-printed form. However, the Court ultimately found that the fact that the document was completed in pencil, had been left partially blank, was not signed in the presence of any witnesses, and contradicted some of his subsequent diary entries did not support the notion that it expressed Fong’s testamentary intentions. The Court was open to the prospect of validating non-compliant wills pursuant to Section 8A, but found that, in this case, the applicant had not sufficiently discharged her burden of proof. As a result, the application was dismissed.
Fong was referenced in a decision later that year, Hayward v. Hayward, in which the Court considered the validity of a spousal separation agreement as a testamentary document under Section 8A. Previous legislation had provided that a will is not automatically revoked by divorce. However, a new provision passed alongside the substantial compliance legislation reversing this rule and declaring that divorce automatically revokes a prior will. The Court ruled on both the principles of retroactivity and substantial compliance with regards to the previous separation agreement, which held that the deceased’s ex-wife was entitled to none of his estate. The Court found that this agreement still reflected the deceased’s testamentary intentions.
In 2017, the Court considered what kinds of documents other than spousal separation agreements may be considered testamentary dispositions under Section 8A. In Jones Estate (Re), Jones’ solicitor and personal representative found four handwritten memos among her personal effects after her death. Memos 1 and 2 were found in her home, and 3 and 4 were found in her safety deposit box along with her Last Will and Testament. Her personal representative brought an application to determine if the handwritten memos were admissible to probate pursuant to Section 8A. Memos 1 and 2 contained solely instructions for Jones’ funeral visitation, cremation, and burial, and thus were not considered testamentary dispositions nor admitted to probate. Memos 3 and 4 indicated additional bequests of cash and personal items to Jones’ heirs. The Court noted that the memos were found with Jones’ Will, the fact that they made reference to each other as functioning as a pair, as well as reference to the original will, and that Memo 4 was signed. Given that the memos made no revocations and included minor additional bequests, the Court admitted them to probate as valid testamentary dispositions.
The most recent Section 8A decision is MacKinnon v MacKinnon Estate. This decision considered all of the relevant case law, citing Fong, Hayward, and Jones. In his written decision, the Honourable Justice Gogan also applied the tests used in Robitaille v. Robitaille Estate and Peters Estate (Re) to determine whether a document under consideration for probate reflects the testamentary intent of the deceased, Neila MacKinnon. The nonexhaustive factors he considered were:
- What is the degree of the formality of the language in the document?
- Is it dated?
- Is it signed?
- Has it been sealed?
- Was it delivered to a person, a specific person, with or without instructions as to what to do with it?
- Were there are any statements made by the testatrix, either at the time of delivery, or in the document itself that speak to the anticipation of death; that the document was intended to reflect a disposition after death?
- Is there any indicia of when it was expected that the document would read?
- The certainty of the bequests set out in the document.
- Whether there are reasons offered for gifting as set out in the document.
- Whether there is a reference to an existing Will that might tie it back to a Will.
- How permanent was the document intended to be – was it written in ink, or in pencil? i.e., Was this just a penciled thought for erasing later or not?
- Whether the document was on a form or is it entirely, as in these notes, in the handwriting of the testatrix.
Giving weight to all the extrinsic evidence and the content of the notes themselves, Justice Gogan decided, on a balance of probabilities, that they reflected MacKinnon’s “fixed and final testamentary intent.” MacKinnon shows that the Court looks at external circumstances—like, in this case, the fact that MacKinnon tried to prepare a new will with her lawyer but died before their scheduled meeting, and that her choice of executor had died—in conjunction with the instructions indicated in noncompliant documents. The notes in question were formalized, addressed the role of the executor, and indicated final testamentary dispositions, albeit were unsigned.
Nova Scotia has developed a relatively sophisticated and extensive level of jurisprudence regarding statutory noncompliance for wills and succession. Lawyers and applicants who are in similar positions of doubt concerning whether non-compliant documents of a testator will be probated can look to the specific facts of these cases to see how analogous they are to their own situations. The Supreme Court of Nova Scotia has considered both the statutory intent of Section 8A of the Wills Act as well as precedent set by case law as widespread as Manitoba’s George v. Daily, 1997 CanLII 17825 (MB CA) to determine the correct decision on issues of contested wills.
Prince Edward Island
Per Section 70 of its Probate Act, Prince Edward Island is a partial compliance province. This means that, like Alberta and Quebec, courts require that noncompliant documents be, at the very least, signed by the testator to be proven. The question of the scope of compliance necessary under Section 70 is still open in PEI. A 2004 case, Estate of Patricia Duffy, 2004 PESCTD 67, applied the Probate Act‘s substantial compliance provision. The testator, Patricia Duffy, had left a signed letter to her executor with a substantial amount of detail on the final dispensing of her estate. For this reason, the Court did not have to ultimately deal with the question of what minimal level of compliance meets its legal requirement under Section 70. The Court approved Duffy’s letter as her last will and testament. Questions that may reach the Court in the future may include whether signed electronic wills can be considered sufficiently compliant, and what level of information must be included in a document for the Court to consider it partially compliant with statutory requirements.
General Takeaways
Each Atlantic province has a unique approach to statutory compliance, from Newfoundland and Labrador’s strict compliance framework to Nova Scotia and New Brunswick’s more lenient approaches. Estate attorneys practicing in any of these jurisdictions should be mindful of the relevant case law and advise their clients accordingly when applying to the Court to probate noncompliant testamentary instruments. As Marsden demonstrates, conforming to the basic standards of statutory compliance is especially relevant to lawyers taking their clients’ last wishes in their final days. Ultimately, a prudent attorney will take as many necessary steps as possible to ensure that their client properly executes their will following all of the relevant statutory requirements.
