Smith Estate, 2012 ABQB 677

Court of Queen ’ s Bench of Alberta Citation: Smith Estate, 2012 ABQB 677 Date: 20121102 Docket: ES03 137188 Registry: Edmonton Court File Number ES03 137188 Court Court of Queen ’ s Bench of Alberta (Surrogate Matter) Judicial District Edmonton Estate Name Thomas George Smith Applicant Mavis Elizabeth Smith Respondents Thomas James Smith Jeffery Smith William Richard Smith also known as Billy William Richard Smith Jasmine Tamara Molloy Public Trustee Loretta Joan Charpentier _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice M.

David Gates _______________________________________________________ [ 1 ] The Applicant seeks advice and direction of the Court concerning the validity of handwritten alterations made to the will of Thomas George Smith. The Applicant seeks an Order to the effect that these handwritten alterations are valid.

[ 2 ] The deceased, Thomas George Smith (“the deceased”), executed a valid formal will on January 16, 2003. At the time, he was residing with his then common law spouse Ms. Loretta Joan Charpentier. The pair separated in 2008, and the deceased sought to make alterations to his 2003 will. The deceased made handwritten alterations which removed Ms. Charpentier as the personal representative under his will, and substituted his daughter, Mavis Smith, as his personal representative. He also removed Ms. Charpentier as the sole residual beneficiary, and instead named his four children and Ms.

Charpentier’s granddaughter, Jasmine Molloy. These alterations were neither initialled by the deceased, nor signed by witnesses. [ 3 ] The former common law spouse is represented by counsel and was served with notice of this application. Counsel for Ms. Charpentier advised counsel for the estate that there is no challenge to the revocation of her appointment as the personal representative or the change in the disposition of the residue of the estate. [ 4 ] In Alberta, the validity of alterations to a will are governed by

section 22 of the new Wills and Succession Act , SA 2010, c W-12.2. The relevant portion of the

section reads as follows: 22(1) Any writing, marking or obliteration made on a will (

a) is presumed to be made after the will is made, and (

b) is valid as an alteration of the will only if (

i) in the case of a will made under

section 15, the alteration is made in accordance with that section, (ii) in the case of a will made under

section 16, the alteration is made in accordance with that section, (iii) the Court makes an order under

section 38 validating the alteration. [ 5 ] In relation to a valid formal will, the

section requires that the alteration be acknowledged by the signature of the testator in the presence of two witnesses at the same time, and that those witnesses both sign the will in the presence of the testator: WSA , ss 22(1) (b)(i), and 15. [ 6 ] The altered will before me does not comply with these provisions. The testator did not place his signature beside the alterations as an indication of acknowledgement of the alterations, nor did two witnesses. Therefore,

section 38 is the only provision that can save the testator’s alterations. [ 7 ]

Section 38 of the WSA states that: The Court may, on application, order that a writing, marking or obliteration is valid as an alteration of a will, despite that the writing, marking or obliteration was not made in accordance with section 22(1)(b)(

i) or (ii), if the Court is satisfied on clear and convincing evidence that it reflects the testamentary intentions of the testator and was intended by the testator to be an alteration of his or her will. [ 8 ] As the new WSA came into force in Alberta in February of this year, there has yet to be judicial consideration of this particular provision.

However, similar provisions are found in the comparable legislation in four other provinces, namely: Saskatchewan’s Wills Act , 1996, c W-14.1, s 37, Manitoba’s Wills Act , CCSM, c W-150, s 23, New Brunswick’s Wills Act , RSNB, 1973, c W-9, s 35.1, and Nova Scotia’s Wills Act , RSNS 1989, c 505, s 8(a). The judicial consideration of these comparable provisions is persuasive authority on the correct approach to interpreting

section 38.

[9] Unlike the Alberta provisions, the other wills legislation allow the Courts to cure not only non-compliance with thealterations provisions under the respective statutes, but non-compliance with any or all of the formal requirements of the Act, dependingon the wording. [10] Although slight variations exist between the language of the respective statutes in regards to the limitations of the dispensationpowers, the test of testamentary intention is the same throughout. Specifically, under the four pieces of legislation, the dispensationpower can be invoked where the Court is satisfied that the document or writing in question embodies: (

a) the testamentary intentions ofthe deceased, or (

b) the intention of the deceased to revoke, alter or revive a will of the deceased or the testamentary intentions of thedeceased embodied in a document other than a will. This test of testamentary intention, although phrased differently, can also be found insection 38 of Alberta’s WSA where it states: “...it reflects the testamentary intentions of the testator and was intended by the testator to bean alteration of his or her will”. [11] This issue was considered by the Manitoba Court of Queen’s Bench in Evelyn Elizabeth Sawatzky et al. v The Estate ofHarry Leonard Sawatzky, 2009 MBQB 222.

In Sawatzky, the Court summarized the guiding principles to be applied in interpretingsection 23 of the Manitoba Wills Act as established by the Manitoba Court of Appeal in George v Daily (1997), (MBCA), 115 Man R (2d) 27 at para 65 (Man.

C.A.), at paragraph 21 as follows: ...in order for a document to be declared a valid will notwithstanding lack of compliance with the formal requirements of the Act, theapplicant must prove, on a balance of probabilities, that the document embodies the deceased’s testamentary intention, that is, that it is “adeliberate or fixed and final expression of intention as to the disposal of his/her property on death...”. [12] The Court went on to quote the statement in George that “...the greater the departure from the requirements of formalvalidity..., the harder it may be for the court to reach the required state of satisfaction” that the document contains the deceased’s finaltestamentary intentions: Sawatzky, at para 23. [13] These principles were also relied upon by the Courts in Saskatchewan, New Brunswick and Nova Scotia, in

interpretation oftheir respective provisions: Nerstine Estate (Re), 2012 SKQB 15, Swanson Estate (Re), 2002 SKQB 115, Ouellet (Re), 2012 NBQB116, Thompson v McKenney Estate, 2011 NSSC 488. [14]

Section 37 of the Saskatchewan Wills Act has been used in a comparable factual circumstance. In Swanson Estate, the Courtused

section 37 as a remedial provision to cure non-compliant alterations made to an otherwise valid will. In reaching this conclusion, theCourt relied upon the fact that a heavy black pen had been used to effectively obliterate the previous writing, the testator had handwrittentheir initials beside the obliterations, and there was a corresponding change in the testator’s life insurance beneficiary designations. [15] Applying these principles to the case before me, I find that

section 38 of the Alberta WSA may be invoked to validate whatwould otherwise be invalid alterations made to a valid will. I find that the alterations were an expression of the deceased’s intention tomake a deliberate and final disposition of his property upon his death. I find so for the following reasons: I. Affidavit evidence indicates the alterations were made in the deceased’s own handwriting; II. The alterations were made to an otherwise valid will, indicating the deceased understood the nature of the testamentarydisposition as final; III.

The prior dissolution of the relationship between the deceased and his former common law spouse, accompanied by thefollowing facts, make it more reasonable than not that the deceased would wish to make alterations to his will and indeed had informedothers of his intentions to do so: (

a) Prior to his death, the deceased and his former common law spouse had a property settlement arrangement;

(

b) The former common law spouse was given adequate notice and did not contest the application. [ 16 ] On that basis, I grant the Order as sought by the Applicant, specifically: I. The time for service of this application is abridged; II. The handwritten changes to the deceased’s will were made by the deceased and are valid alterations to his will pursuant to

section 38 of the WSA ; III. The alterations remove the former adult interdependent partner of the deceased, Loretta Charpentier, as the Personal Representative and residual beneficiary under the deceased’s will; IV. The Applicant, Mavis Elizabeth Smith, is appointed as the sole Personal Representative and Trustee of the Estate of Thomas George Smith; and V. The residual beneficiaries of the will with the alterations are Mavis Elizabeth Smith, Thomas James Smith, Jeffery Smith, William Richard Smith, and ten percent to Jasmine Tamara Molloy. [ 17 ] Costs may be paid from the Estate.

Heard on the 24 th day of October, 2012. Dated at the City of Edmonton, Alberta this 1 st day of November, 2012. M. David Gates J.C.Q.B.A. Appearances: John Stadnyk for the Applicant