Alberta Court of Appeal Clarifies Legal Requirements of a Valid Will

The tripartite legal requirements for a valid Will are set out in section 14 of Alberta’s Wills and Succession Act, SA 2010, c W-12.2 (the “WSA”).

In order for a Will to be valid, it must

1. Be made in writing,
2. Must contain the testator’s signature that makes it apparent on the face of the document that the testator intended, by signing, to give effect to the writing in the document as the testator’s will, and
3. The Will must be made in accordance with sections 15-17 of the WSA, which includes the requirement that the testator’s signature be done in the presence of two witnesses.

There is an exception to this third requirement, provided for in the statute, that allows for a Court order to validate a non-compliant alteration. This is precisely what the Alberta Court of Appeal did in the recent case of McCarthy Estate (Re), 2021 ABCA 403.

In McCarthy Estate, the deceased had died suddenly and unexpectedly.

A self-typed Last Will and Testament was found amongst her personal effects, containing only her signature, and no witnesses as required by the WSA.

In considering the power of the Court under section 37 of the WSA, the public policy objectives in requiring two witnesses to the testator’s signing of their Will is noted. The requirement of the formal execution of the Will in this manner is to protect against fraud, particularly in the case of Wills where the testator is no longer alive to confirm their testamentary intentions.

However, in the interest of ensuring that a testator’s intentions are acted on despite certain formalities of the Will not being present, such as the absence of two witnesses to the testator’s signature, if the Court is satisfied on the evidence before it that the testator intended for the document in question to be their Will, then the lack of formal execution need not be fatal. Accordingly, in exercising its section 37 authority, the Court bears in mind the WSA’s competing policy objectives of enabling the implementation of the testamentary wishes of the deceased, while guarding against fraud through inauthentic writings.

The requirements for formality of execution are aimed at the second objective. The dispensing provision in section 37 is designed to promote the former, in that it enables the court to give effect to testamentary intention despite the lack of formal execution, so long as there are adequate safeguards of authenticity.

Section 37 is clearly designed to be a remedial provision, and it should be given an interpretation that reflects its objectives. Where the test is not met, the dispensing provision cannot be applied, but that is a separate issue from whether it should be narrowly construed[1].

[1] McCarthy Estate at para 9

In McCarthy Estate, the Court of Appeal found that the chambers judge erred in determining the writing did not meet the test set out in section 37.

The Court of Appeal held that the deceased’s testamentary intentions were set out in her Will, and that the testamentary intent was apparent on the face of the document – the testator intended, by signing, to give effect to the writing in the document as the testator’s will as required by section 14(b), and it falls within the definition in section 1(1)(k)(111): a “writing that is a testamentary disposition”.

Even here in the deceased’s case where she failed to sign the fifth page of the document, a “Memorandum of Personal Property”, the Court of Appeal held that in considering that page was initialed by the deceased, and that it was part of the same single document on her computer, her intention to have the entire five-page document form her Will was clear, and it should be regarded as the valid Will of the deceased.

This case is noteworthy as it dissects the trite legal principle that a Will be witnessed by two witnesses to ensure it is an authentic, valid document.

McCarthy Estate shows us that as long as the authenticity of the deceased’s signature is admitted or proven, the need for witnesses can be overlooked.

Here, the Court of Appeal found that there was clear and convincing evidence on the record demonstrative of the authenticity of the writing, notwithstanding the absence of witnesses, and the objectives of formal execution could therefore be dispensed with pursuant to the Court’s authority under section 37 of the Wills and Succession Act.

Ultimately, however, it is best practice to consult with a lawyer to assist with your estate planning so that a formal, valid Will is created and costly litigation to determine the validity of your Will can be avoided.

These types of preventable omissions that do not meet the statutory standard of a valid, formal Will result in unnecessary stress on the loved ones you leave behind, who have to deal with your Estate in the courts, not to mention the associated legal costs of dealing with the validity of the Will in the courts that get paid out of the Estate.

Our lawyers at Vest Estate Lawyers would be happy to assist you with all of your estate planning needs.

Please book a free 20-minute consultation to speak to a Vest Estate Lawyers before deciding on the next steps. Call us today at (403) 226-9757.