Berg Estate (Re), 2016 ABQB 367

Court of Queen ’ s Bench of Alberta Citation: Berg Estate (Re), 2016 ABQB 367 Date: 20160630 Docket: ES03 145840 Registry: Edmonton Court File Number ES03 145840 Court Court of Queen’s Bench of Alberta (Surrogate Matter) Judicial Centre Edmonton Estate Name Estate of Lillian Martha Berg Applicant (Plaintiff) Bryan William Schultz Respondent (Defendant) Mark Schultz, Dennis Compo, Braedyn Schultz, Kyle Schultz, Kerstyn Schultz, Benjamin Schultz, Darcy Schultz, Wendy Booiman, Jollene Deck, Sharilyn Sorenson, Valerie King, Linda Whitten, Chris Berg, Adele Fenchoff, Elaine Berg, Jennifer Domanski, Rhonda Kehler, Lindsay Compo, Taylor Compo, Maxwell Westover, Betty Bennard, Joyce Mitchell, Darlene Wright, Dianne Taylor, Debra Cooper, Danelle Myrick, Harold Gyte, Rosella Plaquin, Terry Oakes, Donna Wasylucha, David Berg, Donald Berg, Valerie Elliot, Linda Whitten, Raymond Mills, Melva Becker, Valentine Mohr, Lorraine Manuel, Ken Berg, and Arlene Shepherd _______________________________________________________ Reasons for Judgment of the Honourable Mr.

Justice Donald Lee _______________________________________________________ Introduction [ 1 ] This is an application in morning Justice’s Chambers for advice and directions concerning the validity of a holograph Will made by the Personal Representative, and in particular for the following Orders: (

a) Declaring valid the dispositions made by the deceased above her signature on the face page and back page of the first sheet of her holograph will; (

b) Declaring that the disposition of the deceased’s investment certificates as directed on the second and third sheets of the will to be

a valid testamentary disposition notwithstanding the provisions of s. 8(3) of the Wills Act (the “ WA ”) and / or s. 19 (3) or (4) of the Wills and Succession Act (the WSA ”). [Do sections 37 and 39 of the WSA permit the Court to validate, as part of a holograph will, dispositions made following a signature or inserted after the signature was made?] (

c) If the Court cannot or will not grant the relief sought in (

b) above, an order declaring that the deceased’s investment certificates be distributed as if the deceased had died intestate. (

d) Cost of the application to be paid from the residue of the estate. [ 2 ] The original Will of the deceased dated July 1, 2006 consisted of two pages wholly in the handwriting of the deceased in which she disposed of a number of bank accounts and a 1982 vehicle. The banks accounts were meticulously listed with account addresses and numbers, and an executor and trustee was named.

The document was wholly in the handwriting of the deceased and signed by the deceased at the bottom of page two. [ 3 ] After the deceased passed away on August 30, 2015 at the age of 105 years it was determined that the bank accounts totalled approximately $650,000. The deceased had no children of her own, and was the last survivor of a family that included her eight siblings. [ 4 ] The holograph Will was found in a security box, and consisted of handwritten sheets - one two sided sheet before her signature and two sheets after her signature.

The security box also contained in two large brown envelopes with the deceased’s handwriting on them, which contained various bank account records including guaranteed investment certificates (“GICs”) and bank statements. These envelopes contained the deceased’s handwritten list of a number of GICs totalling another approximately $250,000. [ 5 ] The estate then consists almost entirely of bank accounts in the one two-sided handwritten page found above the deceased’s signature, and the GICs are listed in the deceased’s handwriting below her signature on two remaining pages.

The list of GICs was found with the holograph Will was not signed by the deceased or dated, but appears to be wholly in the deceased’s same handwriting as well. [ 6 ] Some of the GICs matured prior to the deceased’s death, but they were reinvested upon or shortly after their maturity. Some of the persons named as beneficiaries in the GICs have predeceased the deceased.

The holograph Will did not contain any clause disposing of the residue. [ 7 ] On an intestacy, because her spouse predeceased her, because she left no children or direct descendants, and because she was the last survivor of the nine siblings, her beneficiaries begin with a second degree of relationship [Section 68 of the WSA , SA 2010 c.W- 12.2 ]. Some of the shares of the residue are as small as 1/128, with the largest share being in two cases “1/8”.

Most of the beneficiaries with respect to the gifts disposed of following the Testatrix’s signature are approximately 30 great great nephews and nieces, and great nephews and nieces. [ 8 ] The gifts disposed of above the Testatrix’s signature within the holograph Will range from $20,000 to $630,000, and the beneficiaries consist of a relatively small group of seven related individuals. [ 9 ] The personal representative deposes that it is very clear to her that the deceased wanted the persons named in the Will and on the brown envelopes to have their bequests, regardless of whether their gifts appeared above or below her signature. [ 10 ] The Testatrix’s long time accountant deposes that all the pages and envelope consist of the deceased’s handwriting.

The Applicable Statutes [ 11 ] WSA ,

Chapter W-12.2: Holograph will 16 A will may be made by a writing that is wholly in the testator’s own handwriting and signed by the testator without the presence or signature of a witness or any other formality . Signature 19

(1) A testator may sign a will, other than a will made under

section 16, by having another individual sign on the testator’s behalf, at the testator’s direction and in the testator’s presence.

(2) A will is not invalid because the testator’s signature is not placed at the end of the will if it appears that the testator intended by the signature to give effect to the will .

(3) A testator is presumed not to have intended to give effect to any writing that appears below the testator’s signature .

(4) A testator’s signature does not give effect to any disposition or direction added to the will after the will is made . Alteration of a will 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, or (iii) the Court makes an order under

section 38 validating the alteration.

(2) If a writing, marking or obliteration renders part of the will illegible, and is not made in accordance with subsection (1)(b)(

i) or (ii) or validated by an order referred to in subsection (1)(b)(iii), the Court may allow the original words of the will to be restored or determined by any means the Court considers appropriate.

(3) A will may be altered by another will made by the testator.

Interpretation and evidence 26 A will must be interpreted in a manner that gives effect to the intent of the testator, and in determining the testator’s intent the Court may admit the following evidence: (

a) evidence as to the meaning, in either an ordinary or a specialized sense, of the words or phrases used in the will, (

b) evidence as to the meaning of the provisions of the will in the context of the testator’s circumstances at the time of the making of the will, and (

c) evidence of the testator’s intent with regard to the matters referred to in the will . Portion of estate not disposed of by will 34 Unless the Court, in interpreting the will, finds that the testator had a contrary intention, an executor appointed by the will (

a) is a trustee of any property not disposed of by the will, and (

b) holds that property in trust for the person or persons, if any, who would be entitled to receive it under

Part 3 if the testator had died intestate. Court may validate non-compliant will 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 made in accordance with

section 15, 16 or 17, if the Court is satisfied on clear and convincing evidence that the writing sets out the testamentary intentions of the testator and was intended by the testator to be his or her will or a revocation of his or her will. Court may validate non-compliant alteration 38 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. Rectification 39(1) The Court may, on application, order that a will be rectified by adding or deleting characters, words or provisions specified by the Court if the Court is satisfied, on clear and convincing evidence, that the will does not reflect the testator’s intentions because of (

a) an accidental slip, omission or misdescription, or (

b) a misunderstanding of, or a failure to give effect to, the testator’s instructions by a person who prepared the will. (2) Subsection (1) applies to the omission of the testator’s signature only if the Court is satisfied on clear and convincing evidence that the testator (

a) intended to sign the document but omitted to do so by pure mistake or inadvertence, and (

b) intended to give effect to the writing in the document as the testator’s will .

(3) An application under this

section may not be made more than 6 months after the date the grant of probate or administration is issued, unless the Court orders an extension of that period.

(4) The Court may order an extension of the period on any terms the Court considers just. [Underlining Added] [ 12 ] WA , RSA 2000, C W-12 : Application of Act 2

(1) Unless otherwise expressly provided, Parts 1 and 2 apply only to wills made on or after July 1, 1960.

Will to be in writing 4 A will is valid only when it is in writing. Validity of will 5 Subject to sections 6 and 7 , a will is not valid unless (

a) it is signed at the end or foot of it by the testator or by some other person in the testator’s presence and by the testator’s direction, (

b) the testator makes or acknowledges the signature in the presence of 2 or more attesting witnesses present at the same time, and (c) 2 or more of the attesting witnesses subscribe the will in the presence of the testator. 7 A testator may make a valid will wholly by the testator’s own handwriting and signature, without formality, and without the presence, attestation or signature of a witness . [ 13 ] WSA ,

Chapter W-12.2 amended s.8 of the WA RSA 2000 c.w-12 : Signature 8

(1) Insofar as the position of the signature is concerned, a will is valid if the signature of the testator, made either by the testator or the person signing for the testator, is placed at or after or following or under or beside or opposite to the end of the will so that it is apparent on the face of the will that the testator intended to give effect by the signature to the writing signed as the testator’s will.

(2) A will is not rendered invalid by the circumstance that (

a) the signature does not follow or is not immediately after the foot or end of the will, (

b) a blank space intervenes between the concluding words of the will and the signature, (

c) the signature is placed among the words of a testimonium clause or of a clause of attestation or follows or is after or under a clause of attestation either with or without a blank space intervening, or follows or is after or under or beside the name of a subscribing witness, (

d) the signature is on a side or page or other portion of the paper or papers containing the will on which no clause or paragraph or disposing part of the will is written above the signature, or (

e) there appears to be sufficient space on or at the bottom of the preceding side or page or other portion of the same paper on which the will is written to contain the signature.

(3) The generality of subsection (1) is not restricted by the enumeration of circumstances set out in subsection (2), but a signature in conformity with

section 5 , 6 or 7 or this

section does not give effect to a disposition or direction that is underneath the signature or that follows the signature or to a disposition or direction inserted after the signature was made . [Underlining Added] Alteration of will 19

(1) Subject to subsection (2), unless an alteration that is made in a will after the will has been made is made in accordance with the provisions of this Act governing the making of a will, the alteration has no effect except to invalidate words or meanings that it renders no longer apparent.

(2) An alteration that is made in a will after the will has been made is validly made when the signature of the testator and the subscription of witnesses to the signature of the testator to the alteration, or, in the case of a will that was made under

section 6 or 7 , the signature of the testator, are or is made (

a) in the margin or in some other part of the will opposite or near to the alteration, or (

b) at the foot or end of or opposite to a memorandum referring to the alteration and written in some part of the will. 38

(1) When a person dies on or after July 1, 1960, having by will appointed a person executor, the executor is a trustee of any residue not expressly disposed of, for the person or persons, if any, who would be entitled to that residue in the event of intestacy in respect to it, unless the person so appointed executor was intended by the will to take the residue beneficially.

(2) Nothing in this

section affects or prejudices a right to which the executor, if this Part had not been passed, would have been entitled, in cases where there is not a person who would be so entitled. [ 14 ] Alberta Evidence Act , RSA 2000, c A-18: Evidence in action by heir, etc. 11 In an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposed or interested party shall not obtain a verdict, judgment or decision on that party’s own evidence in respect of any matter occurring before the death of the deceased person, unless the evidence is corroborated by other material evidence .

[Underlining Added] Analysis [ 15 ] It appears based on the Surrogate Rules that all necessary parties have been served with respect to this application for advice and directions by the personal representative. No beneficiaries have formally responded. [ 16 ] In RM Estate , 2015 ABQB 475 I concluded that the purpose of

section 26 of the WSA was to give the Court as much latitude as possible in allowing the Court to ensure that a Testatrix’s final wishes were in fact carried out and fulfilled. [ 17 ] In applying for the Grant for Probate in this matter, the personal representative believes that the intention of the Testatrix was that the GICs in question were to be distributed along with the bank accounts listed in the holograph Will, to the persons named by the Testatrix, and that essentially there is no intestacy created.

There was no residue clause in the holograph Will. [ 18 ] Clearly there are deficiencies in this case with respect to the holograph Will, and the pages and lists found with it in the security box. However as indicated,

section 26 of the WSA allows the Court to examine extraneous evidence for the purpose of determining the intent of the Testatrix. In this case the personal representative has given relevant and reliable extraneous evidence which I can rely on to determine the intent of the Testatrix.

Section 26 allows the Court to ensure that the Testatrix’s intentions are performed in situations where the Act has not been strictly adhered to, so long as those intentions are clear. [ 19 ] The “rectification” sections 37 and 39 in the WSA , give the Court the discretion to overlook the omission of the Testator’s signature only if I am satisfied on clear and convincing evidence that the Testator intended to sign the document, but omitted to do so by pure mistake or inadvertence and intended to give effect to the writing in the document: section 39(2) of the WSA .

There is no evidence before me however that this omission was by “pure mistake or inadvertence”, so I conclude that the “rectification” sections do not apply. [ 20 ] However I am satisfied that what likely occurred here is that the Testatrix started out with a series of bank accounts that were part of her holograph Will made in July 2006. She also owned GICs. As the GICs matured, and were renewed by her between the time the original holograph Will was signed and dated on July 1, 2006, she would write out the replacement or renewed GICs first on additional sheets and then on the envelopes.

These writings would have appeared after the original signature from July 1, 2006. Nevertheless it appears to be clear that it was the Testatrix’s intention to dispose of those GICs that appear after her signature in the manner in which she described, and that the reason for the GICs appearing after her signature was because the GICs came into existence after her signature. [ 21 ] The one major problem in concluding that the GICs pass in accordance with the handwritten dispositions, is found in section 8(3) of WA which reads as follows: ...

(3) The generality of subsection (1) is not restricted by the enumeration of circumstances set out in subsection (2), but a signature in conformity with

section 5 , 6 or 7 or this

section does not give effect to a disposition or direction that is underneath the signature or that follows the signature or to a disposition or direction inserted after the signature was made . [Underlining Added] [ 22 ] Accordingly while the WSA of 2012 applies retroactively to a Will made on July 1, 2006, the WA also still applies to Wills made in 2006 as this one was. The WA specifically in section 8(3) deals with holograph Wills, which are described in

section 7 of the WA . Section 8(3) of the WA states that “signatures in conformity with

section 7 do not give effect to a disposition or direction that is underneath the signature or that follows the signature or to a disposition or direction inserted after the signature was made”. [ 23 ] I conclude that there is a contradiction between section 8(3) of the former WA , and some newer provisions in the WSA .

The WSA contains the most recent revisions to this area of the law, although section 8(3) of the WA seems most specific in terms of the present situation before me. [ 24 ] Throughout the WSA, the phrase “unless the Court, in interpreting the will, finds that the testator had a contrary intention, apparent on the face of the document appears: section 14(6) of the WSA.

This phrase replaces the WA reference “unless a contrary intention appears in the will.” This latter phrase reflected the prohibition on the use of extrinsic evidence, under which the Court was limited to look only within the will itself, with the exception of “armchair evidence” to interpret the will, There was considerable confusion as to whether or when latent or patent ambiguity had to appear in order for a Court to venture outside the corners of the document, and if so, how far. The WSA refocuses the

interpretation process on the underlying goal: determination of testamentary intent. [ 25 ] Central to this refocusing, is

Section 26 of the WSA .

Section 26 requires that a will be interpreted so as to give effect to the intent of the testator.

Section 26(

a) and (

b) codify the common law rules which require the Court to look at the special or general meaning of the words in the Will and allow limited external evidence under the “armchair” rule

Section 26(

c) goes a step further to allow the use of extrinsic evidence of intent in interpreting the Will. [ 26 ] As before, the validity of the Will must be established, i.e. the Will must be proven to be validly made, before

interpretation rules are applied. The Court is not empowered to create a Will where there was none. This is what happened in Woods Estate (Re) , 2014 ABQB 614 . In Woods Estate the document in question was found to demonstrate no testamentary intention as it consisted essentially of a questionnaire. [ 27 ] In Smith Estate , 2012 ABQB 677 my colleague Gates, J. had the benefit of a lengthy hearing into the matter before deciding that there was the necessary testamentary intention. I could also order a hearing into the present matter now before me. However because of my within analysis, I will not be making such an order.

Conclusion [ 28 ] Attached to my Reasons as Appendix A is a spread sheet in which the results of the various options in this matter are listed, as to the generic category of beneficiary and as to the amount of the gift as prepared by counsel at my request after the oral hearing of this matter.

What follows from column 4 of the spread sheet is the amounts gifted if an intestacy is found regarding the GICs listed below the deceased’s signature, as opposed to a finding that all gifts be included and disposed of in accordance with the holograph Will strictly interpreted [Column 2 and 3]. [ 29 ] Based on the analysis I have made, and because there is a relatively minor difference between the sum total of Column 2 and 3, and Column 4, I conclude that the dispositions made by the Testatrix above her signature on the front and back page of the first sheet are valid. [ 30 ] I further conclude that all dispositions below the deceased’s signature will not fall into intestacy, notwithstanding section 8(3) of the WA .

The various sections that I have listed from the WSA , the deposed to belief of the personal representative of the deceased’s intention, and my factual conclusion as to what the Testatrix intended all lead me to conclude that the GICs will be distributed in accordance with the Testatrix’s written directions in their entirety. [ 31 ] Column 1 plus Column 2 and 3 from the spreadsheet attached as Appendix A will therefore apply. Column 4 will not be applicable. Solicitor/client costs will be paid out of the estate. Heard on the 26 th day of May, 2016.

Dated at the City of Edmonton, Alberta this 30 th day of June, 2016. Donald Lee J.C.Q.B.A. Appearances: Douglas I.

Jenkins for the Applicant APPENDIX A Column 1 PLUS Column 2 AND Column 3 Column 1 PLUS Column 4 Beneficiary Relationship Property Passing Above Deceased’s Signature* No Question as to the Validity of Column 1 Property Passing Following Deceased’s Signature* * Void if additions to will are invalid Share on Intestacy- if additions to will are valid Share on Intestacy - if additions to will are Invalid Great Nephew Bank Accounts = $91,206.62 ½ of a CIBC GIC = $7,573.01 1/32 of $30,733.82 = $960.44 1/32 of $237,277.71 = $7,414.93

Great Nephew Bank Accounts = $21,472.02 ½ of a CIBC GIC = $7,573.01 1/32 of $30,733.82 = $960.44 1/32 of $237,277.71 = $7,414.93 GG Nephew 1/5 of Bank Account = $126,094.37 CIBC GIC = $20,000.00 None None GG Nephew 1/5 of Bank Account = $126,094.37 CIBC GIC = $20,000.00 None None GG Niece 1/5 of Bank Account = $126,094.37 BNS GIC = $20,096.44 None None GG Nephew 1/5 of Bank Account = $126,094.37 BNS GIC = $20,274.60 None None GG Niece 1/5 of Bank Account = $126,094.37 BNS GIC = $20,093.15 None None Nephew Bank Account = $27,535.39 None 1/16 of $30,733.82 = $1,920.88 1/16 of $237,277.71 =$14,829.26 Great Niece None 1/3 of a CIBC GIC = $3,333.33 None None Great Niece None 1/3 of a CIBC GIC = $3,333.33 None None Great Niece None 1/3 of a CIBC GIC = $3,333.33 None None Niece None 1/3 of a CIBC GIC = $3,333.33 1/32 of $30,733.82 = $960.44 1/32 of $237,277.71 = $7,414.93 Niece None 1/3 of a CIBC GIC = $3,333.33 1/32 of $30,733.82 = $960.44 1/32 of $237,277.71 = $7,414.93 Nephew’s spouse None 1/3 of a CIBC GIC = $3,333.33 None None Unknown None CIBC GIC = $10,000.00 None None Nephew’s spouse None ½ of CIBC GIC = $10,000 None None Great Niece None ½ of CIBC GIC = $10,000 None None Great Niece None BNS GIC = $10,174.30 None None Great Niece None BNS GIC = $10,082.74 None None Great Nephew None TD GIC =$10,631.55 None None Great Niece None None 1/128 of $ 30,733.82 = $240.11 1/128 of 237,277.71 = $1,853.73 Great Niece None None 1/128 of $ 30,733.82 = $240.11 1/128 of 237,277.71 = $1,853.73 Great Niece None None 1/128 of $ 30,733.82 = $240.11 1/128 of 237,277.71 = $1,853.73 Great Niece None None 1/128 of $ 30,733.82 = $240.11 1/128 of 237,277.71 = $1,853.73 Great Niece None None 1/128 of $ 30,733.82 = $240.11 1/128 of 237,277.71 = $1,853.73 Great Niece None None 1/128 of $ 30,733.82 = $240.11 1/128 of 237,277.71 = $1,853.73 Great Niece None None 1/128 of $ 30,733.82 = $240.11 1/128 of 237,277.71 = $1,853.73 Great Nephew None None 1/128 of $ 30,733.82 = $240.11 1/128 of 237,277.71 = $1,853.73 Great Nephew None None 1/32 of $30,733.82 = $960.44 1/32 of $237,277.71 = $7,414.93 Great Niece None None 1/32 of $30,733.82 = $960.44 1/32 of $237,277.71 = $7,414.93 Great Nephew None None 1/32 of $30,733.82 = $960.44 1/32 of $237,277.71 = $7,414.93 Great Niece None None 1/32 of $30,733.82 = $960.44 1/32 of $237,277.71 = $7,414.93 Nephew None None 1/16 of $30,733.82 = $1,920.88 1/16 of $237,277.71 =$14,829.26 Niece None None 1/16 of $30,733.82 = $1,920.88 1/16 of $237,277.71 =$14,829.26 Nephew None None 1/32 of $30,733.82 = $960.44 1/32 of $237,277.71 = $7,414.93 Nephew None None 1/32 of $30,733.82 = $960.44 1/32 of $237,277.71 = $7,414.93 Nephew None None 1/8 of $30,733.82 = $3,841.73 1/8 of $237,277.71 = $29,659.72

Niece None None 1/16 of $30,733.82 = $1,920.88 1/16 of $237,277.71 =$14,829.26 Nephew None None 1/16 of $30,733.82 = $1,920.88 1/16 of $237,277.71 =$14,829.26 ARS None None 1/8 of $30,733.82 = $3,841.73 1/8 of $237,277.71 = $29,659.72