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NB Court of Appeal probates Will without signature. What does that mean for Ontario?

The abridged version of this article was originally published by The Lawyer’s Daily, part of Lexis Nexis Canada Inc.

Stephen J. McNally J. of the New Brunswick Court of Queen’s Bench was the judge presiding over the litigation involving the Estate of Jean Agnes MacDonald Marsden.1 The Testator was an older woman with five children. Two of the children had little to do with her for over 20 years. She never bothered dealing with her will until she was admitted to a hospital at the last stages of lung cancer. Pursuant to her instructions the lawyer drafted the will providing that the two children who had ignored their mother for 20 years would receive $100 each. The residue was to be divided equally amongst the three other children. The elderly woman died before the lawyer brought the will to be executed. Notwithstanding that the Will was unsigned and clearly did not comply with the formalities of execution the judge hearing the case ordered that it be probated.2 The New Brunswick Court of Appeal decision affirmed the judge’s decision and dismissed the appeal.3 What, if any, impact does this have on Ontario?

Key to the New Brunswick decision was s. 35.1 of the Wills Act which provides:

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.

The judge hearing the application concluded that “…that the unsigned Last Will and Testament drafted by Mr. Sheehan upon Mrs. Marsden’s instructions reflects Mrs. Marsden’s deliberate, fixed and final expression as to the disposal of her property upon her death.4 The judge exercised the discretion under s. 35.1 of the New Brunswick legislation to grant the application seeking to probate the will. In New Brunswick the legislation provides a judge with discretion to ignore the formalities of execution and that is what happened here. Could that happen in Ontario?

Those trying to probate an unsigned testamentary document will be hard pressed to successfully argue that this case should be considered persuasive authority in Ontario. In Ontario the rules with respect to wills, known as the formalities of execution, are set out in the Succession Law Reform Act5 (the “SLRA”). The formalities of execution require that a will be in writing (s.3) and signed by the testator (or by some other person in the testator’s presence and by the testator’s direction), with the testator acknowledging their signature in the presence of two or more attesting witnesses present at the same time. Further, the will must then be signed by the two or more witnesses in the presence of the testator (s.4). Section 4(1)(a) of the SLRA is clear and unambiguous. A will is not valid unless, at its end, it is signed by the testator or by some other person in his or her presence and by his or her direction. There is no comparable section in the SLRA that provides the courts any authorization or discretion to order that the testamentary document is valid. Some have argued that even in the absence of the SLRA providing judges with discretion to permit substantial compliance there is an inherent jurisdiction to do so.

In a previous blog entitled “Have Ontario’s Courts dispensed with Strict compliance with the Formalities of Execution?6 Charles Wagner argued that “It seems that most other cases in Ontario adopt Justice Cullity’s approach.7 From Justice Cullity’s perspective courts must comply with the directions of the legislature and are not at liberty to change the law introducing uncertainty. As the court stated in Hindmarsh v Charlton8 “…we must obey the directions of the legislature, and are not at liberty to introduce nice distinctions which may bring great uncertainty and confusion”. There are those who disagree and argue that courts have an inherent jurisdiction to permit testamentary documents that substantially comply with the formality of execution.9

The legal community in Ontario will be watching cases like the Marsden Estate Case very carefully until our own Court of Appeal rules on the issue of substantial compliance in the context of the formalities of execution set out in the SLRA.

Footnotes
  1.   Re: Estate of Jean Agnes MacDonald Marsden 2017 CarswellNB 540, 2017 CarswellNB 541, 2017 NBBR 199, 2017 NBQB 199, (2017) N.B.J. No. 295, 286 A.C.W.S. (3d) 199, 33 E.T.R. (4th) 333. (The Marsden Estate Case)
     
  2.   See paragraph 21 of Marsden Estate Case.
     
  3.   Marsden et al. v. Talbot 2018 CarswellNB 562, 2018 CarswellNB 563, 2018 NBCA 82, 299 A.C.W.S. (3d) 675, 46 E.T.R. (4th) 209
     
  4.   See paragraph 17 of the Marsden Estate Case.
     
  5.   Succession Law Reform Act, R.S.O. 1990, c. S.26
     
  6.   See https://www.wagnersidlofsky.com/have-ontarios-courts-dispensed-with-strict-compliance-with-the-formalities-of-execution
     
  7.   See Sills v. Daley (2002), 3 E.T.R. (3d) 297 (S.C.J.) and Papageorgiou v. Walstaff Estate, (2008) 2620, 42 E.T.R. (3d) (S.C.J.). Sill v. Daley has been judicially considered at least six times. It has not received negative treatment. See Ettorre Estate, Re 2004 CarswellOnt 3618 (Ont. S.C.J.), Thom v. Thom Estate
    2016 BCSC 681 (B.C. S.C.), CIBC Trust Corp. v. Horn 2008 CarswellOnt 4706 (Ont. S.C.J.), Papageorgiou v. Walstaff Estate

    2008 CarswellOnt 3828 (Ont. S.C.J.), Zerbinati v. Zerbinati 2013 ONSC 7630 (Ont. S.C.J.)Grey v. Boyd 2011 ONSC 7288 (Ont. S.C.J.)
     

  8.   Hindmarsh v. Charlton (1861), 8 H.L Cas. 160 at 166-167. For more on the issue of judicial activism in Canada I refer the reader to “Remarks of the Right Honourable Beverley McLachlin, P.C.” which can be found at http://www.scc-csc.gc.ca/court-cour/ju/spe-dis/bm04-11-12-eng.asp . In her address she tries to address the following question, “What then of the accusation that courts have gone beyond their proper role? The charge is made that activist judges – politicians cloaked in judicial robes – have gone beyond impartial judging to advocate for special causes and achieve particular political goals, and that this is undemocratic.”
     
  9.   See Hillary Laidlaw’s article, “Sills v Daley and the doctrine of substantial compliance: Is close enough good enough?” which can be found on line at https://www.wagnersidlofsky.com/wordpress/wp-content/uploads/Compliance-Close-Enough.pdf
     

Gregory Sidlofsky, David Wagner and Charles Wagner

The authors of this blog are Gregory Sidlofsky, David Wagner and Charles Wagner. Gregory is a Certified Specialist in Litigation by The Law Society of Upper Canada and partner at Wagner Sidlofsky LLP. David is a member of the firm’s Estate and Commercial Litigation Groups. Charles is a Certified Specialist in Estates and Trusts and partner at Wagner Sidlofsky LLP.

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This blog is not intended to serve as a comprehensive treatment of the topic. It is not meant to be legal advice. Every case turns on its specific facts and it would be a mistake for the reader of this blog to conclude how it might impact on the reader’s case. Nothing replaces retaining a qualified, competent lawyer, well versed in this niche area of practice and getting some good legal advice.
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