General Rules
The laws that apply to the making of a Will vary from province to province. All provinces recognize the conventional form of Will ; the laws of Alberta, Saskatchewan, Manitoba, Ontario, Quebec, New Brunswick and Newfoundland allow for a holograph Will. The law in Quebec provides for a notarial form of Will. The laws that apply in any case depend upon where the Will was drafted and in which province the deceased (testator) was living at the time of death.
Conventional Wills
Also known as the English Law Will, it is the most common form of Will and is recognized by all the provinces. (in Ontario, under the Succession Law Reform Act, in Quebec, the Civil Code of Quebec, in all other provinces the provincial Wills Act applies) In Quebec this type of Will is known as the ‘Will made in the presence of witnesses’.
The following requirements apply to the Conventional Will:
The Will must be in writing,
The testator (person who makes the will) must be mentally capable and cannot be a minor,
The Will must be signed at its end by the testator,
The Will must be signed by 2 witnesses, present at the same time, who attest that the document is the Will of the testator and bears his or her signature,
The witnesses to the Will must be of legal age (exceptions, s. 11 of the SLRA) and cannot be beneficiaries of the Will or spouse of the testator.
It is generally followed practice to ensure the Will is dated.
In Quebec the testator and each witness must initial each page of the Will. (art. 728)
Holograph Wills
A holograph Will is a Will completely handwritten by the testator. It is subject to no other formal requirement ; the signatures or attestations of witnesses are not required for the Will to be legal (section 7, Wills Act of Alberta). Of those provinces that accept a holograph Will, some require the testator’s signature, others do not. The entire Will must be in the handwriting of the testator ; a typed Will with testator’s signature is not accepted as a legal holograph Will.
Holograph Wills are valid in Ontario, Alberta, New Brunswick, Newfoundland, Quebec, Manitoba and Saskatchewan. In Nova Scotia and P.E.I the use of holograph Wills are not permitted, although the law in P.E.I. was amended to permit a “substantial compliance” provision (Sec. 70 of the Act) to allow the court to recognize a holograph document if it is signed and judged to represent the testamentary intentions of the deceased. In British Columbia holograph Wills are not allowed, but the law will uphold a valid holograph Will made outside of B.C insofar as it applies to moveable property in that province. (sec. 40 of the Wills Act)
Legal Cases Regarding Holograph Wills
According to Bennett v. Gray, [1958] S.C.R. 392). a holograph Will must be seen as expressing the testamentary wishes of the deceased in order to be valid.
The Civil Code of Quebec (CCQ) states a holograph Will must “be written entirely by the testator in his hand and signed by him without the use of any mechanical process” (art. 726). However art. 714 considers a holograph Will that does not meet all requirements to be nonetheless valid if it satisfies the essential intentions of the form and if it represents without question the wishes of the deceased. (for further on art. 714 see Mercier et Mercier-Charron, 95-1208 J.E ;, Pelletier et Cote, 95-343 J.E.).
Some cases have dealt with the requirement that a holograph Will be entirely in the handwriting of the testator. For example Jacques v. Allain-Robitaille(1978), 3 E.T.R. 243, the Supreme Court of Canada upheld the requirement that a holograph Will be entirely in the handwriting of the testator when it ruled that a typewritten letter signed by the deceased did not qualify as a legal holograph Will (Jacques v. Allain-Robitaille , 1978, 3 E.T.R. 243)
Section 6 of the SLRA provides for the formalities of making a holograph Will in Ontario, the only requirement being that it is made by the testator “wholly by his or her own handwriting and signature, without formality, and without the presence, attestation or signature of a witness”. In the case of a printed Will form, some legal decisions exist which have managed to stretch the requirements of holograph Wills by ratifying only the handwritten part of the form to stand as a holograph Will where the handwritten parts clearly express the testator’s wishes.
In Sunrise Gospel Hour et al. v. Twiss (1967), 59 W.W.R. 321, 61 D.L.R. (2d) 582, the Alberta Court of Appeal excluded from probate the printed form part of the Will and allowed the handwritten part only. Similar decisions can be found in Re Ford (1954), 13 W.W.R. 604 (Alta.) ; Re Laver (1957), 21 W.W.R. 209 ; and Re Shortt (1977), 4 A.R. (2d) 152.
In Ontario it seems that a conventional Will can be revoked by a holograph Will but not altered by a holograph Will (see SLRA s. 18(2), s. 15(b))
A holograph Will is particularly useful in cases of emergency where the testator has neither the time nor recourse for a conventional Will. The case of Cecil Harris, a Saskatchewan farmer who died when pinned under his tractor is often cited to make this point. On the tractor’s fender, he used a knife to carve the words : “In case I die in this mess, I leave all to the wife. Cecil Harris.” The court considered the words written on the fender as a valid holograph Will.
Notarial Wills - Quebec
In the province of Quebec a notary drafts a notarial Will in accordance with articles 716 and 717 of the CCQ. Usually more expensive than a “will made in the presence of witnesses” it has added elements of security not to be found in the other types of Will. The notary ensures the legal formalities have been respected making the document more difficult to contest in court. Notarial Wills do not require probate.
The notary reads the Will before the testator and one witness (two witnesses in special cases) all of whom sign the Will in each others presence. In Quebec the Chambre des notaries maintains a register of all notarial Wills so they are readily found if the notary pre-deceases the testator or is otherwise unavailable at the testator’s death. (similarly, the Barreau du Québec maintains a register for all holograph Wills and Wills made in the presence of witnesses which have been drafted by lawyers).
Articles 719-722 of the CCQ provide for the situation where a person is blind, deaf, deaf-mute, incapable of signing, or unable to express him or herself aloud.
Articles 723 and 725 require that the notary must not be the spouse of the testator, related to the testator or connected with the testator by marriage. Witnesses must be of legal age and cannot be in the employ of the notary, unless a notary themselves.
Article 716 requires that the Will be dated and that the place of drafting be indicated on the Will.
International Wills
A testator with assets in more than one country may consider an international Will. In 1973, the Convention Providing a Uniform Law on the Form of an International Will established rules for the acceptance of an international form of valid Will. All jurisdictions adopting the convention recognize standard formalities regarding the drafting, witnessing and administrative authorizations associated with these Wills. Not all provinces accept this type of will and its use is not widespread. In Ontario sec. 42 of the SLRA deals with international Wills.
The following citations indicate the references to international Wills in provincial law :
Alberta Wills Act, R.S.A. 2000, c. W-12, ss. 44- 54 (50,420- 50,434) ;
Manitoba The Wills Act, R.S.M. 1988, c. W150, ss. 48- 58 (58,700-58,745) ;
New Brunswick’s International Wills Act, S.N.B. 1997, c. I-12.4, ss. 1 and 2 (63,830 et seq.) ;
Newfoundland Wills Act, R.S.N. 1990, c. W-10., ss. 30-43,(66,692-66,980)
Nova Scotia An Act Respecting International Wills, S.N.S. 2000, c. 7, effective June 8, 2000, except Convention, effective on proclamation, ss. 1 et seq.(69,191) ;
Ontario Succession Law Reform Act, R.S.O. 1990, c. S.26, s. 42 (78,291) ;
Prince Edward Island Probate Act, R.S.P.E.I. 1988, c. P-21, ss. 120-130 (82,233-82,245) ;
Saskatchewan The Wills Act, 1996, S.S. 1996, c. W-14.1, ss. 41-51(91,210-91,220).
Members of the Armed Forces
Provincial legislation provides for a special kind of Will in the case of members of the Canadian Armed Forces or in the case of a mariner or seaman in the course of a voyage. Similar to a conventional Will, there is no requirement for witnesses to be present or for either testator or witnesses to sign the document. There is no age requirement for the testator, so long as they were members of the armed forces or employed as mariners at the time the Will was written. A Will of this type is valid after the person leaves the service or the sea voyage is over.
In Ontario the SLRA, section 5 provides inclusion for any member of a naval, land or air force or sailor when on sea voyage, and allows that the Will may be signed by someone other than the testator in the testator’s presence.
Section 5 of the Wills Act of Manitoba provides for a similar use of these Wills in that province.
The legislation in Ontario and Manitoba provides for certain rules to establish whether a person is on active service. As well, see section 31 of the National Defense Act as it applies to the conditions and agreements under which persons are considered to be on active service.
In Nova Scotia, subsection 9 of the Nova Scotia Wills Act states any soldier or member of the armed forces “being in actual military service or any mariner or seaman being at sea, may dispose of his personal property in the manner in which that soldier, mariner or seaman might have done before the twenty-seventh day of March, 1840″.
In Newfoundland, section 3 of The Wills Act makes provision for the Wills of volunteers, which includes members of the Newfoundland Regiment or the Newfoundland Royal Naval Reserve.
Codicils
A codicil is an addition to a Will that is intended to make some variation (usually slight) to a Will. It does not revoke the Will that it varies and is meant only as a codicil or variation to a Will rather than a complete new Will. Since it is part of the Will, the codicil must meet the formal requirements of a Will. Thus, a codicil must be witnessed by two witnesses in the presence of the testator when executed. If it is going to be holographic, it must be written entirely in the handwriting of the testator and signed by the testator.
Memorandums
A memorandum (sometimes called a Memorandum of Gifts) is an unattested (unwitnessed) document attached to the Will that describes personal items of property intended as gifts to individuals. To be valid the memorandum must have existed prior to the making of the Will, must be signed and dated prior to the date on the Will and the Will must contain clear and specific reference to the memorandum document. A memorandum to a Will cannot be altered except by a codicil or a new Will.
Precatory Memorandums
A precatory memorandum (also known as a Memorandum of Wishes) is a document that is not specifically identified or referenced in the Will and is intended to convey only the wishes of the testator to his executor regarding discretionary matters of the disbursement of the estate. A precatory memorandum is usually not considered legally binding.
Case Law regarding Precatory Memoranda
In Ontario the courts have treated memoranda not incorporated by reference (i.e. not specifically and clearly identified in a Will) as an expression of the wishes of a testator to his trustee and not intended to be binding. (Ontario High Court cases of Re Blow and Re Rudaczyk).
Of historical interest, the 1965 English Court of Appeals case of Re Londonderry’s Settlement is often taken as authority regarding the non-disclosure of precatory documents.
In another English case, a beneficiary sought disclosure of trust documents and letters of wishes. The court held that in the matter of the precatory documents it had discretion to refuse disclose where it would not be in the interests of all beneficiaries or in absence of any compelling argument by the beneficiary. (Re Rabaitti’s Settlements, Court of Jersey) In Australia (Court of Appeal, New South Wales, Australia, Harrington nominees Pty LTD., 1992) the Appeal Court cited the confidentiality owed to the testator and refused to order disclosure of letters of wishes.
Mutual Wills
Spouses will sometimes seek to execute Wills together, drawn on identical terms, each testator being the beneficiary to the other’s estate, or having beneficiaries in common.. Often these Wills carry an agreement, explicit or implicit, that the terms of the Will not be changed without the consent of the other party. Such wills are sometimes referred to as “mirror wills”.
A issue to be aware of with these situations is that the terms of a mutual Will can sometimes impact a most basic, fundamental principal of the law of Wills, that being that a Will is always revocable (given the testator is of sound mind). In the case of mutual Wills however, where there is a clear agreement on behalf of the spouses not to revoke, a constructive trust may be imposed on the surviving spouse if he or she executes a new Will after the death of the partner. A constructive trust occurs “…. when the law imposes upon a party an obligation to hold specific property for another. The person obligated becomes by force of law a constructive trustee towards the person to whom he owes performance of the obligation.” (Lord Denning in Hussey v Palmer (1972) 3 All E.R. 70 (CA) )
In the case of University of Manitoba v. Sanderson Estate (1998), 20 E.T.R. (2d) 148 (B.C.C.A.), a husband and wife had prepared mutual Wills that included an agreement not to revoke, bequeathing the residue of their estate to the University of Manitoba. After the wife died the husband made a new Will which named different individual beneficiaries. When the husband died the University of Manitoba sought a Declaration that the husband’s second Will was invalid and that the executors held the residue of the estate as constructive trustees for the sole benefit of the university. Upon appeal the court agreed, finding that, in light of the agreement not to revoke, the second Will constituted a fraud upon the deceased.
Living Wills
A Living Will (also known more formally as an Advance Health Care Directive) provides instructions about the nature of medical treatment you wish to receive (or not receive) in the event you become incapable of communicating your own wishes. In cases where you might not have specific health care instructions, your Living Will can designate another person (a proxy) who will make decisions on your behalf if you are unable to do so yourself.
Only certain provinces - Alberta, British Columbia, Manitoba, Newfoundland, Ontario, Prince Edward Island and Saskatchewan - have laws making health care directives binding. Quebec and Nova Scotia permit health care proxies but not living wills or advance health care directives ; however court decisions suggest that living wills may be legally enforceable even in those provinces that do not have legislation authorizing them. (The Ontario Court of Appeal in Malette v. Shulman (1990), 72 O.R. 2d 417 and Flemming v. Reid (1991), 4 O.R. 3d 74)
The medical condition of the individual concerned will bear heavily on the wording of a living will ; vague language regarding the future circumstances of health and quality of care should be avoided. Instructions directing euthanasia are not enforceable. In all cases, a living will should be drawn up under the direction of a family physician.
http://www.professionalreferrals.ca/2003/10/acceptable-forms-of-the-will-in-canada/
