Formal Validity of Wills Flashcards
What does complying with formalities do?
- Ensures testator protected from undue influence
- Serves as evidence of intention
Privileged wills
Those written by people under age but married or in military
Attested wills
Most common form. Formal wills, attested means witnessed by other people
Writing requirement
Will valid only when in writing
What does in writing mean?
Printed, painted, lithograph, photographed, represented, reproduced in any visible form
Murray v Halo
” (ditto mark)= writing, same as above
Re Harris
Not specified what writing has to be on. Trapped under tractor and scratched onto tractor.
Signature Requirement
- Don’t care about form of signature care about intention to give effect to the will
- So long as sufficient evidence it was best testator could do and that it constituted intention its okay
Amanuensis
Someone who signs a will on behalf of another
-Can either sign your name or theirs, what’s important is you were asked to do it
Re White
Facts: T had a stroke, could mentally affirm but physically could not sign. One of witnesses helped him move his hand to make a mark.
Ratio: A direction to sign a will has to be given in the presence of witnesses and testator has to be physically present telling them to sign
Position of signature
Do not sign at the top then write it. Gift under signature or clearly established in handwriting generally not validated- inference that your wrote it after. Can prove otherwise but uphill battle
Re Riva
Demonstrates that courts will try to give effect to weird signatures. Portion she wanted to sign too small so signed the side.
Yen Estate
Facts: 4 daughters and one was murdered rewrote, granddaughter wants intestacy for tries to invalidate
Omnia Prae: all things are presumed to have been done correctly. Can be relied upon when no evidence whether or not they signed before or after disposition written in.
What is the standard?
Balance of probabilities- if it looks like testator signed last even if position is off they will probate
How many witnesses for attestation?
2
Process
Testator makes/ acknowledges signature in front of 2 witnesses present at the same time. Must see testator sign.
Witnesses signature
Have to sign in the presence of the testator, testator must see witness sign
Chesline v Hermastin
Facts: dispute as to the order in which parties signed and whether or not even saw testator sign. Evidence showed one witness in a rush signed before testator.
Ratio: not probated, signature of testator must be written or acknowledged by the testator in the actual visible presence of each witness together before either of them attests the will
Age requirement for witness?
Must be age of majority
Re Gunston
Facts: neither witness saw signature when they came in T was lying down her pen, did not see signature and she did not talk about signing it
Ratio: Not sufficient acknowledgement unless witnesses saw or might have seen signature—not sufficient to say “my signature is in there” if they could not see it. Don’t need to see it but need opportunity to see it.
Beneficiaries/ Executors as witness
Not invalid but may invalidate specific gift
Incorporation by reference
Exception if the document is unattested/ otherwise does not conform with formalities. May be incorporated into valid will by reference.
Rules to incorporate by reference
1) Document you are seeking to incorporate by reference has to exist at time you make your will (has to predate will)
2) Will must refer to this document/ specify that it already exists (shouldn’t be one subject to change)
3) Document must be referred to with sufficient precision on the will (give specifics and sufficiently describe it so court can identify it)
Re Goods of Smart
Facts: wanted to incorporate a book but didn’t exist at time of will. Made codicil but still didn’t mention book
Ratio: Incorporation cannot use future language. Not sufficient to confirm will in codicil if will continues to refer to document in future tense
Contrast to Re Goods of Smart
If the wording in your will is neutral then codicil reaffirming will can validly incorporate by reference
Holographic wills
A will made by testators handwriting and signature with no witnesses/ attestation
3 common scenarios for holographic wills
1) Suicide notes
2) Instructions to a lawyer concerning the making of a formal will
3) What happens when you have a mix of handwritten and printed material someone wants to probate
Bennet v Grey
- Instructions concerning a formal will
- Need to have clear intention to be a will
Canada Permanent Trust Co v Bowman
Facts: Document in her handwriting naming “bequests” some expressions had been crossed out and replaced by others
Ratio: court found this was a fixed and final expression of what she wanted done
Mixed print and writing issues
- Must be wholly in handwriting of testator
- If use a standard will form if no witnesses there is an issue
- Court will probate still IF can construe just from the handwriting portions
Re Forest
Used a printed will form and wrote in some gifts by hand. However instead of naming executor or residual beneficiary they didn’t. Court said not probated. Could not construe from just handwriting
Re Phillip
Identical facts to Re Forest but probated. Specific gifts can be given out if executor not named. Really avoiding intestacy here. Courts strictness makes a difference.
Re Clark
Holographic will. Printed at the top. Printing doesn’t matter its the position but there was evidence he signed after. Probated.
Re Dixon Marsden Estate
Facts: Typed piece of paper, each pp initialed, dated at top, signed at bottom, wrote words “the above mentioned are in short those whom my estate is left” above signature
Ratio: Argued for holographic will to incorporate by reference. Not probated because: (1) while it can be on same sheet of paper not seperate enough, (2) need something capable of being probated to incorporate it into, (3) not in handwriting so needed a witness (if in handwriting we can assume intention)
Dispensing or validating power
Allows a court if it is satisfied that the will actually embodies the testamentary intentions of the deceased to probate a will despite the fact that a will doesn’t comply with all the legal formalities required
Main questions to ask when using dispensing/ validating powers
1) is this document authentic and 2) does it represent the deceased testamentary intentions
* if satisfied with these two minor formalities can be overlooked*
Sutherland v Sutherland Estates
Facts: beneficiary witnessed will, NB disqualifies beneficiary from getting a gift they witnessed.
Ratio: substantial compliance doctrine couldn’t be used for this kind of mistake, just for execution flaws
Furlotte v McAllister
Facts: note in handwriting but unsigned found by kids, read by all them but they lost it. Daughter re-created in her own handwriting
Ratio: court probated
Re Degrace
Oral evidence that draft expressed testators intentions. Probated.
Electronic Wills
Largely impermissible in Canada however they have been probated in BC and QC under their dispensing powers
Privileged Wills
Person in Forces may make a will by writing signed by them or other person in their presence and by their direction without any other formality required. No need for holographic, can be typed. No need for witness
