Curtis Estate (Re), 2014 ABQB 745

Court of Queen ’ s Bench of Alberta Citation: Curtis Estate (Re), 2014 ABQB 745 Date: 20141205 Docket: ES03 141975 Registry: Edmonton Court File Number ES03 141975 Court Court of Queen’s Bench of Alberta (Surrogate Matter) Judicial District Edmonton Estate Name Stewart Allan Curtis Applicant (Plaintiff) Susanne Curtis Corrected judgment: A corrigendum was issued on December 8, 2014; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice D.C. Read _______________________________________________________

Summary: [ 1 ] An executrix sought to have admitted into probate a non-compliant handwritten purported will, in the executrix’s handwriting, but signed by her husband, the testator. Can such a will be validated pursuant to s. 37 of the Wills and Succession Act , SA 2010, c W-12.2 (“WSA”)?

Facts: [ 2 ] In January, 1988, Allan Curtis (the “Deceased”) was married to Susanne Curtis (the “Applicant”) when he purported to make his will. The document (“Document”) is handwritten and is reproduced below in its entirety: January 26, 1988 I, Allan Curtis, leave my entire estate to my wife Susanne Curtis and my children Kathleen Dorothy, Donna Gail & David Allan. (signed) “Allan Curtis” [ 3 ] The Applicant’s evidence was that the body of the Document was written entirely in her handwriting.

However, the signature “Allan Curtis” was in the handwriting of the Deceased. [ 4 ] Immediately beneath this writing and on the same sheet of paper, there is a mirror version of these words, in the same handwriting, by which Susanne Curtis leaves her entire estate to “my husband Allan Curtis” and “my children”, naming the same three children. It is signed “Susanne Curtis”. The Applicant’s evidence is that all of this portion of the document is in her handwriting. [ 5 ] The Deceased’s marriage to Susanne Curtis was his third marriage.

He had previously been married to a woman named Laura, and prior to that to a woman named Shirley. Susanne Curtis’s evidence was that the wills were drafted by her after a casual conversation between her and Mr. Curtis, during which they both admitted they did not have wills and agreed that they should have them. She said when they decided they should each have one, she immediately hand-wrote the matching wills and showed them to Mr. Curtis who signed his portion. She deposed that she thought they should get wills in place immediately because, at the time, their children were very young and Mr.

Curtis often worked out of town. She deposed further that they both believed that these wills clearly expressed their intentions and never saw need to change them. She deposed that, once signed, the document was kept in a small “important papers” file along with Mr. Curtis’s life insurance and vital statistics documents. [ 6 ] Allan Curtis died June 21, 2013. Susanne Curtis and Allan Curtis remained married until his death. [ 7 ] The Deceased had six natural children. Kathleen, Donna and David were his children from his marriage to the Applicant.

Three other children Christopher, Patrick and Daniel Curtis were his children from his first marriage to Shirley. A further child, Charlene, was a stepchild from his second marriage to Laura. All of the children with the exception of Charlene were given notice of this application and none appeared to oppose although two of the Applicant’s children were present in support. [ 8 ] An affidavit was filed identifying the signature on the Document as that of the Deceased. The Applicant deposed that she believes that the will was never revoked or modified in any way prior to the Deceased’s death.

She swears that to her knowledge, the will has always been indicative of the Deceased’s testamentary intention. [ 9 ] The Applicant submits that she is a preferred applicant to be appointed personal representative if the will is deemed valid. Issues: [ 10 ] There are two issues: a. The application was brought in morning Chambers on affidavit evidence. Was it properly brought in this forum? b. Is there sufficient evidence to conclude that the Document sets out the Deceased’s fixed and final testamentary intentions? Law and Analysis: i.

Was the Application Properly Brought? [ 11 ] This application was properly brought by application and affidavit. The issue was clear cut and no one opposed the application. As well, counsel for the Applicant provided a written brief and copies of case law. It will be a rare case, however, where such an application can be heard and determined, as this one was, in morning chambers. [ 12 ] Rule 70 of the Surrogate Rules, Alberta Rules of Court , AR 124/2010 as am provides that an application for the purposes of s. 37 of the WSA is to be commenced by filing an application accompanied by an affidavit.

However, r. 64 is also applicable and this rule gives the Court wide discretion to determine the procedure at a hearing, including the ability to require further affidavit evidence, to hear evidence orally or to direct a trial of issues. As a general rule, such applications will be too time consuming and too complex to be heard in morning chambers. ii.

Is the Evidence Sufficient to Conclude that the Document Sets out the Deceased’s Testamentary Intentions? [ 13 ] The evidence is sufficient to conclude that the Document constitutes a valid will and may be submitted for probate. [ 14 ] The Document does not comply with the requirements to establish formal validity for a will as these are outlined in ss. 14 –

17 of the WSA. [15] Pursuant to s. 14, to be valid, a will: (

a) must be made in writing, (

b) must contain a signature of the testator that makes it apparent on the face of the document that the testator intended, by signing, togive effect to the writing in the document as the testator’s will, and (

c) subject to any order made under

section 37, must be made in accordance with

section 15, 16 or 17. [16]

Section 15 sets out the requirements for a valid written will. It must be signed by the testator who must do so or acknowledgehis signature in the presence of two witnesses present at the same time. Each witness must also sign the will in the presence of thetestator. [17]

Section 16 sets out the requirements for a valid holograph will. It must be “a writing that is wholly in the testator’s ownhandwriting and signed by the testator without the presence or signature of a witness or any other formality”. [18]

Section 17 sets out the requirements for a valid will for someone in active military service and is inapplicable. [19] The Document is not wholly in the Deceased’s handwriting. Nor are there any witnesses. It does not conform to therequirements of either s. 15 or s. 16. [20] Nonetheless,

section 37 of the WSA permits the validation of documents, which purport to be wills, but lack the formalitiesoutlined by ss. 15, 16 or

Section 37 reads as follows: 37 The Court may, on application, order that a writing is valid as a will or a revocation of a will, despite that the writing was not madein accordance with

section 15, 16 or 17, if the Court is satisfied on clear and convincing evidence that the writing sets out thetestamentary intentions of the testator and was intended by the testator to be his or her will or a revocation of his or her will. [21] Because the WSA only came into force in February of 2012, there has not as yet been a great deal of judicial

interpretation ofs. 37. The Applicant was unable to provide any case directly on point and I have not found any in my own research. However, similarprovisions exist in other Canadian jurisdictions. [22] The meaning of the term “testamentary intention” was considered by the Manitoba Court of Appeal in George v Daily (1997), (MB CA), 143 DLR (4th) 273, 115 Man R (2d) 27 (Man CA). The term is also found in s. 23, the provision of theManitoba Wills Act, CCSM, c W150 that is analogous to s. 37 of the WSA.

Section 23 reads as follows: 23 Where, upon application, if the court is satisfied that a document or any writing on a document embodies (

a) the testamentary intentions of a deceased; or (

b) the intention of a deceased to revoke, alter or revive a will of the deceased or the testamentary intentions of the deceased embodied ina document other than a will; the court may, notwithstanding that the document or writing was not executed in compliance with any or all of the formal requirementsimposed by this Act, order that the document or writing, as the case may be, be fully effective as though it had been executed incompliance with all the formal requirements imposed by this Act as the will of the deceased or as the revocation, alteration or revival ofthe will of the deceased or of the testamentary intention embodied in that other document, as the case may be. [emphasis added] [23] The Manitoba Court held that “the term ‘testamentary intention’ means much more than a person's expression of how hewould like his/her property to be disposed of after death.

The essential quality of the term is that there must be a deliberate or fixed andfinal expression of intention as to the disposal of his/her property on death”: para 65 [24] The foregoing principle was adopted by this Court in Smith Estate, 2012 ABQB 677 at para 15. [25] The term “clear and convincing evidence” does not imply a higher standard of proof than the normal civil standard.

TheSupreme Court of Canada confirmed that there is only one civil standard of proof, which is proof on a balance of probabilities: C.(R.) v.McDougall, 2008 SCC 53 at 49. [26] In this case, I have concluded that the standard of proof has been met for five reasons. [27] First, I am satisfied based upon the affidavit evidence of Tanya Tinney that the Deceased signed the will. She deposed that shewas the Deceased’s accountant and had known him for over six years before his death.

She frequently saw him write and signdocuments during this time and said she was very familiar with his signature. [28] Because it has been signed, the Document complies with the statutory obligations pursuant to s. 14 of the WSA.

Section 37does not permit the Court to dispense with the writing and signing requirements outlined in s. 14: Woods Estate (Re), 2014 ABQB 614 atpara 18. [29] Secondly, the Affidavit evidence was that the Deceased and the Applicant made their wills together and that their intentionwas to “share the estate with our immediate family only” because at the time, the children of the Applicant and the Deceased were veryyoung, whereas the children from his first marriage were almost adults. No evidence was tendered to refute this statement. [30] Thirdly, there was evidence that the Deceased believed he had a will and that the Document was what he considered to be his

will. The Applicant gave hearsay evidence that she had spoken to the Deceased’s best friend Gordon Briggs in August 2014 and he told her that he, Mr. Briggs, had once asked the Deceased if he had a will and the Deceased replied “Yes, Sue has it”. [ 31 ] Fourthly, there is no evidence that the Deceased either changed his mind or wrote any other document as his will.

The Document was kept by the Deceased and the Applicant in a file with other important papers from the time it was executed until the death of the Deceased. [ 32 ] Fifthly, and most important, however, is the fact that the Deceased’s three older children were served with notice of this application and did not appear to contest it. The Applicant deposed that all are adults and none was dependent upon the Deceased.

The Applicant deposed further, that in April 2014 she attended a memorial service for the Deceased’s brother and there met and spoke with Shirley, the first wife of the Deceased along with their oldest son Christopher. Her evidence was that both told her they knew that Shirley and the children of that marriage were not beneficiaries under the Deceased’s will and neither expressed any dissatisfaction.

While this is hearsay, Christopher was given notice of this application, including a copy of the affidavit in support and did not appear to dispute this evidence. [ 33 ] In a case such as this, where the Document is in the handwriting of a beneficiary, the Court must be concerned about the possibility of undue influence or duress.

There is no evidence of that here. [ 34 ] In George at para 81 , the Manitoba Court of Appeal found “... the greater the departure from the requirements of formal validity ..., the harder it may be for the court to reach the required state of satisfaction” that the document contains the deceased's final testamentary intentions.” Here, although the Document is a great departure from the requirements of formal validity in the circumstances, I am prepared to conclude that it sets out the Deceased’s deliberate fixed and final expression of intention as to the disposal of his property on death. [ 35 ] The costs of this application are payable from the estate.

Heard on the 11 th day of November, 2014. Dated at the City of Edmonton, Alberta this 5 th day of December, 2014. D.C. Read J.C.Q.B.A. Appearances: Edward Gallagher Patriot Law Group for the Applicant _______________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Madam Justice D.C. Read

_______________________________________________________ The database number has been corrected to read ‘745 instead of 475.