Edmunds Estate, 2017 ABQB 754

Court of Queen’s Bench of Alberta Citation: Edmunds Estate, 2017 ABQB 754 Date: 20171206 Docket: ES01 122814 Registry: Calgary Court File Number ES01 122814 Court Court of Queen’s Bench of Alberta (Surrogate Matter) Judicial Centre Calgary Estate Name Dolores Joyce Edmunds Applicant (Plaintiff) Richard Hood Respondent (Defendant) South Calgary Community Church a Congregation of the North American Baptist General Conference, the Mustard Seed Society previously known as the Mustard Seed (Calgary) Street Ministry Society and the Canadian National Institute for the Blind _______________________________________________________ Reasons for Decision of the Honourable Mr.

Justice C.M. Jones _______________________________________________________ I. Introduction [ 1 ] The past few years have seen much discussion about the formalities necessary to create a valid will. The Wills and Succession Act , SA 2010, c W-12.2 (“ WSA ”) gave the Court expanded power to validate a will that previously would have fallen short. This case concerns just how far the Court may go. [ 2 ] At the relevant time, the testatrix, Dolores Edmunds, was married to her second husband, George Edmunds, who suffered from dementia and lived in an institution. Ms.

Edmunds had no children. [ 3 ] The Applicant, Richard Hood, is the nephew of Ms. Edmunds’ first husband. Mr. Hood’s evidence is that he and Ms. Edmunds became quite close toward the end of her life. He states that they spoke on the phone a few times a week, that he visited her once or twice a month and that he did favours for her as her husband’s condition worsened. [ 4 ] In the months prior to her death, Ms. Edmunds gave instructions for a new will leaving the whole of her estate to Mr. Hood, who also was to be named as executor. That will was prepared but never signed. Mr.

Hood asks this Court to exercise its discretion under the WSA to validate the unsigned will. [ 5 ] I conclude that it would not be appropriate to exercise my discretion to add Ms. Edmund’s signature to the unsigned will. Ms. Edmunds’ death was not an “accident or omission.” Nor can I find on clear and convincing evidence that Ms. Edmunds intended to sign the unsigned will, nor that her failure to do so arose through pure mistake or inadvertence. II. Background Narrative [ 6 ] In 2008, Ms. Edmunds had executed a valid will giving a life interest in her estate to her husband with the remainder passing

to certain charities. The executor was to be her brother-in-law, with her sister as the alternate. [ 7 ] In July 2016, Ms. Edmunds came into contact with Christine Herrington, a paralegal carrying on business under the name AZPERLEGAL. Ms. Herrington met with Ms. Edmunds on July 20, 2016. Mr. Hood was also present. Ms. Edmunds directed that her will be amended to make Mr. Hood the executor. She also directed Ms. Herrington to prepare a power of attorney and a personal directive, both naming Mr. Hood. [ 8 ] Ms. Herrington prepared a codicil to the 2008 will appointing Mr. Hood as executor.

This codicil, executed on July 27, 2016, did not alter the dispositive provisions of the 2008 will. [ 9 ] On September 20, 2016, Mr. Hood contacted Ms. Herrington, indicating that Ms. Edmunds had new instructions regarding her will. On September 27, 2016, Ms. Edmunds spoke to Ms. Herrington on the phone, saying she now wanted to leave the residue of her estate to Mr. Hood, save for the life interest for her husband. Mr. Hood was present at Ms. Edmunds’ home during this conversation. He asserts that Ms.

Edmunds made this decision because his wife had been diagnosed with multiple sclerosis, putting strain on his family. [ 10 ] Ms. Herrington states that she did not confirm these instructions directly with Ms. Edmunds in the absence of Mr. Hood. She requested that Mr. Hood confirm with Ms. Edmunds whether she wished to proceed with a new will and who should receive the residue of her estate if Mr. Hood and his immediate family all predeceased Ms. Edmunds. [ 11 ] On November 14, 2016, Mr. Hood sent the following email to Ms. Herrington: Will you please draft up the document based on best practices you recommend?

Waiting for us to come up with the content just isn’t working, so my hope is if we can get a draft from you with majority done, we can then get it across finish line. Really all Dolores wants is simple, she wants to leave house and everything to me, but on the chance she predeceases George she wants to ensure he continues to be cared for in Long Term Care at Brentwood Intercare, where he now resides in the dementia ward. Also, if anything happened to me Dolores wants everything split equally between my sons Ryan and Matthew. [ 12 ] On December 6, 2016, Ms. Edmunds’ husband died. On December 7, 2016, Mr.

Hood advised Ms. Herrington by email that it was no longer necessary to provide a life estate to George Edmunds before the residue could pass to Mr. Hood. Ms. Herrington suggested that a new will be prepared and delivered a draft to Mr. Hood on December 10, 2016. [ 13 ] On December 23, 2016, Ms. Edmunds was hospitalized for a variety of ailments. She returned home on December 30, 2016. [ 14 ] On January 19, 2017, Ms. Herrington visited Ms. Edmunds at her home to discuss the draft will. Mr. Hood was also present. Specifically, Ms.

Herrington needed input on her desired funeral arrangements and on the disposition of the residue should Mr. Hood and his family predecease Ms. Edmunds. Having received these instructions, Ms. Herrington sent a new draft of the will to Mr. Hood on January 30, 2017. [ 15 ] On January 26, 2017, Ms. Edmunds fell and broke her leg, and was again hospitalized. She began to improve in February, but died unexpectedly from pneumonia on March 9, 2017. [ 16 ] Ms. Edmunds had not seen the final draft of the unsigned will prepared by Ms. Herrington when she passed away. III.

The Legislative Framework [ 17 ] Sections 37 and 39 of the WSA allow the Court to deal with deficiencies in a purported will.

Section 37 is a dispensing provision that allows the Court to validate wills that do not comply with formal requirements.

Section 39 is a rectification provision that allows the Court to add to or subtract from a will to make it accord with a testator’s evidenced intentions. [ 18 ] To understand the scope of these provisions, I must consider their development and, in particular, how they compare to dispensing and rectification provisions in other jurisdictions. While such provisions are widely used, ss. 37 and 39 are unique in their approach to the signature requirement.

By addressing the failure to sign a will under s. 39 rather than s. 37, the Legislature has sent a strong signal that the Court’s authority to add a signature to an unsigned will is to be narrowly construed. 1. Rectification Provisions [ 19 ] Traditionally, the equitable power to rectify contracts did not apply to wills.

While the courts had power to remove mistaken or excess words included, they had no authority to add anything to a will. [ 20 ] Rectification provisions are designed to address mistakes and drafting errors, including clerical errors and failures on the drafter’s part properly to express the testator’s wishes. See Wills and the Legal Effects of Changed Circumstances (Edmonton: Alberta Law Reform Institute, Report no. 98, August 2010) at 115. [ 21 ] England was the first jurisdiction to enact such a provision.

Section 20(1) of the Administration of Justice Act 1982, c 53 (UK), provides: If a court is satisfied that a will is so expressed that it fails to carry out the testator’s intentions, in consequence— (

a) of a clerical error; or (

b) of a failure to understand his instructions,

it may order that the will shall be rectified so as to carry out his intentions. [22] New Zealand and all of the Australian jurisdictions have rectification provisions nearly identical to the English model. InCanada, only British Columbia and Alberta have such provisions. [23] This Court has rectified a will using s. 39 on several occasions since the WSA came into force.

In Ryrie v Ryrie, 2013 ABQB370, a will left the testator’s property to his named, currently living children with a gift over “if any child of mine has predeceased meleaving issue alive at my death.” Two of the testator’s children had already predeceased him when the will was drafted. Sisson J held thatthe resulting ambiguity amounted to either an accidental slip or a failure on the drafter’s part to express the wishes of the testator.

Herectified the will by removing the names of the children, so that the issue of the two predeceased children would inherit. [24] In Fuchs v Fuchs, 2013 ABQB 78, the testator had prepared a will following his marriage. That marriage was void, but thecouple successfully married shortly afterwards with the result that the will was revoked by the subsequent marriage. Rooke ACJ rectifiedthe will to conform with the testator’s intentions by adding a clause confirming that the will was made in contemplation of marriage. 2.

Dispensing Provisions [25] In 1975, the legislature of Southern Australia introduced a dispensing provision that deemed a “document purporting toembody the testamentary intentions of a deceased person” to be a will, notwithstanding failure to comply with legal formalities. Thejurisprudential effect of this was profound and other Australian jurisdictions soon passed their own dispensing provisions. [26] Law reform institutes in Canada also investigated the viability of dispensing provisions. In 1983, Manitoba became the firstprovince to legislate a dispensing provision.

Section 23 of the Wills Act, CCSM c W150 currently reads as follows: 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. [27] The leading Manitoba case interpreting this provision is George v Daily (1997), (MB CA), 115 Man R(2d) 27 (CA).

In that case, the testator advised his accountant that he wanted to change his will. That accountant wrote to a lawyer, whomet with the testator to confirm his instructions. The lawyer recommended the testator get a certificate from his doctor confirming hismental capacity before he finalized the will, anticipating a challenge from the disinherited sons. Before that could happen, the testatordied.

The applicant sought to admit to probate the letter from the accountant to the lawyer specifying the instructions, but the Courtrefused, saying at para 65: The term "testamentary intention" means much more than a person's expression of how he would like his/her property to be disposed ofafter death.

The essential quality of the term is that there must be a deliberate or fixed and final expression of intention as to the disposalof his/her property on death. [28] The Court held at paras 98-99 that a strong onus rested on the party relying on the dispensing provision, particularly when thedocument conforms with few or no formalities.

The Court held that there was insufficient evidence to conclude that the letter representedthe testator’s final intention, particularly given that it was written by a third party and was not reviewed or approved of by the testator. [29] Sawatzky v Sawatzky Estate, 2009 MBQB 222, the facts of which resemble this case, followed George. The testator hadterminal cancer, but believed he had several months to live. He retained a lawyer to make changes to his will.

The lawyer made note ofthe changes, but by the time he returned the following day with a revised copy for signature, the testator unexpectedly had passed away. [30] Simonsen J was not satisfied that the original will, with additional notes written in by the lawyer, adequately reflected thetestator’s “fixed and final” testamentary intentions. There was no evidence that he had reviewed the final document including thelawyer’s notes or that he would not have made any additional changes. The testator believed he still had time, so his instructions were notnecessarily final.

Further, the evidence suggested that the testator was a meticulous person who would have attached significance toofficially signing his will. [31] Saskatchewan, New Brunswick and most recently British Columbia have enacted broad dispensing provisions directly basedon the Manitoba model; see Wills, Estates and Succession: A Modern Framework (Vancouver: British Columbia Law Reform Institute,Report no. 45, June 2006) at 25.

These jurisdictions also have adopted the leading Manitoba jurisprudence; see for example, Re YoungEstate, 2015 BCSC 182 and Re Hadley Estate, 2017 BCCA 311. [32] Some American jurisdictions also have adopted dispensing clauses, usually called “harmless error” clauses. For example,section 2-503 of the Uniform Probate Code (Chicago: Uniform Law Commission, 2010) provides that: Although a document or writing added upon a document was not executed in compliance with

Section 2-502, the document or writing istreated as if it had been executed in compliance with that

section if the proponent of the document or writing establishes by clear andconvincing evidence that the decedent intended the document or writing to constitute:

(1) the decedent’s will, (2) a partial or complete revocation of the will, (3) an addition to or an alteration of the will, or (4) a partial or complete revival of his or her formerly revoked will or of a formerly revoked portion of the will. [ 33 ] The commentary to this

section attributes its inspiration to Manitoba, the Australian jurisdictions, and Israel. It emphasises that the burden rests with the applicant, and that the “clear and convincing” evidence standard will provide a bar to frivolous litigation. 3. The WSA Approach [ 34 ] While, like other jurisdictions, Alberta has both dispensing and rectification provisions, the language of those provisions and their relationship to one another are unique. [ 35 ] Most significantly, signature formality issues are addressed by the rectification rather than dispensing provision.

Section 37 allows the Court to dispense with formalities relating to witnesses and to the specific requirements of holograph and military wills, but does not apply to the primary requirements that a will be in writing and be signed in such a way as to demonstrate intentionality; see Woods v Cannon , 2014 ABQB 614 at para 18 .

Section 37 therefore is a “weak” dispensing provision in that it does not excuse compliance with every formality. [ 36 ] Issues regarding the testator’s signature are instead addressed in s. 39(2) of what is otherwise a standard rectification provision. This makes it clear that signature errors are not to be treated as they would be in a jurisdiction with a broader dispensing provision. Inclusion in the rectification provision means that a signature literally must be added by the Court, and only if it was omitted by “pure mistake or inadvertence.” [ 37 ] This difference in approach is crucial.

A relaxed attitude to adding signatures would create a de facto full dispensing clause, which the Legislature clearly decided against by rejecting the language recommended by ALRI and adopted by other Commonwealth jurisdictions. [ 38 ] A second distinctive element is the requirement for “clear and convincing evidence,” which reinforces that the burden of proof is on the applicant. This term is not present in the other Commonwealth provisions, but is drawn from the American “harmless error” clauses.

Read J in Re Curtis, 2014 ABQB 745 , confirmed at para 25 that “clear and convincing” does not create a standard higher than balance of probabilities, as per FH v McDougall , 2008 SCC 53 . [ 39 ] There is sparse case law applying s. 39(2). In Woods , the testatrix, approaching the end of her life, had an interview with a lawyer in which she completed a will questionnaire and described her wishes. The lawyer was to return the following week to execute the will, but the testatrix passed away that night.

Strekaf J, as she then was, held at paras 21-22: Even if I accept that the Will Questionnaire reflected Pat's intentions and that she intended to sign a will to be prepared on that basis at the next scheduled meeting with Ms. Barvir on December 5, 2012 (which is not disputed by the Respondent), this

section is not applicable as it cannot be said that, due to pure mistake or inadvertence, she omitted to sign a document that was not even in existence at the time of her death. Further, s. 39 requires that that testator intended to give effect to the writing as the testator's will. As discussed above, Pat's intention was to give effect to a document to be prepared by Ms. Barvir as her will not to Pat's Notes or to the Will Questionnaire.

By including s. 39 in the Act, the Alberta legislature elected to adopt a middle position between the jurisdictions like Manitoba, which permit a writing to be recognized as a will notwithstanding the lack of the deceased's signature, and jurisdictions like Prince Edward Island that require a signature in all cases… [ 40 ] Similarly, in Schultz v Schultz , 2016 ABQB 367 , Lee J ruled at para 19 that ss. 37 and 39 could not remedy a holograph will where the signature was located at the bottom of only two of four pages: 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. IV. Application 1. Rectification [ 41 ] Mr. Hood applies to have the Court rectify the unsigned will by adding Ms. Edmunds’ signature. He argues that the lack of signature is an accidental omission, as contemplated in s. 39(1)(a), caused by circumstances beyond Ms. Edmunds’ control, including her unexpected death and Ms. Herrington’s inability to attend upon execution more expeditiously. [ 42 ] Counsel for Mr.

Hood candidly acknowledged that he could not cite authority showing that s. 39 was intended to address this kind of situation. He argued, however, that the Court should be willing to grant an equitable remedy to achieve what he asserts were Ms. Edmunds’ objectives.

[ 43 ] Notwithstanding that Ms. Edmunds never had the opportunity to review the final version of the unsigned will, Mr. Hood argues that I should conclude from Ms. Herrington’s evidence that it reflects Ms. Edmunds’ final intent. [ 44 ] I agree that in the context of s. 39 of the WSA , the absence of a testator’s signature cannot be taken as determinative of intention. Indeed, the

section exists, in part, to permit that signature to be added under certain circumstances, when other evidence of intention is present. [ 45 ] However, this is not an appropriate circumstance in which to add a testator’s signature to an unsigned will. Ms. Edmunds’ failure to sign the will was not an accidental omission. Her death cannot be responsibly characterized as an “accident” that resulted in the omission of her signature on the unsigned will. Had she attended a meeting to execute the will but failed to do so, I might have some basis for a different conclusion. Consequently, s. 39(1)(

a) does not assist Mr. Hood. [ 46 ] Mr. Hood also argues that s. 39(1)(

b) applies because Ms. Herrington’s failure to get Ms. Edmunds to sign her will constitutes a failure by the person who prepared the will to give effect to the testator’s intentions. His evidence is that sometime between January 30 and February 23, 2017, Ms. Edmunds inquired about the status of her will and indicated that she wanted to get it signed. He states that Ms. Herrington was unable to attend to execution in a timely manner due to other commitments. [ 47 ] I am not satisfied that Mr. Hood accurately describes Ms. Herrington’s actions. She emailed Mr. Hood on February 23, 2017 asking how Ms.

Edmunds was doing. Mr. Hood responded on February 23, 2017 that he would check with Ms. Edmunds on February 24 th to see if she would agree to a meeting the following week. [ 48 ] Ms. Herrington advised Mr. Hood by email on February 24, 2017 that, even though the following week would be difficult for her, “If she wants to do it next week though then let’s just get it done.” [ 49 ] I find that the unsigned will also does not represent a failure by Ms. Herrington to give effect to Ms. Edmunds’ instructions. What those instructions were remained to be seen at a meeting to execute the unsigned will.

That meeting never took place. Thus, s. 39(1)(

b) does not apply. [ 50 ] Mr. Hood also argues that the requirements of s. 39(2) (

a) are satisfied because Ms. Edmunds omitted to sign her will through inadvertence. He asserts that Ms. Edmunds did not know she should contact Ms. Herrington to have her will signed. [ 51 ] Mr. Hood would have the Court accept that Ms. Edmunds’ alleged inadvertence arose at least partly because she did not know that it was Mr. Hood who deferred the execution of the unsigned will until she could recover somewhat from her immediate health challenges. [ 52 ] It is not clear to me if this “inadvertence”, if indeed it is such, can be said to rest with Ms. Edmunds, as opposed to Mr. Hood. In my view, the inadvertence referred to in s. 39(2) (

a) must be the testator’s, not that of a third party. I arrive at this conclusion by noting that s. 39(2) (

b) requires the testator to have intended to sign the will. It is logical that the testator’s intention therefore must have been thwarted by that same testator’s inadvertence. Mr. Hood’s intentional interference with Ms. Edmunds’ alleged expressed wish to sign her will can hardly be said to be Ms. Edmunds’ inadvertence. [ 53 ] Nor can Ms. Edmunds be found, through her inadvertence, to have failed to execute a will she intended to sign. First, I am not satisfied on clear and convincing evidence that she intended to sign the unsigned will. Seven weeks passed between Ms. Edmunds’ meeting with Ms.

Herrington and her death. There is no evidence other than Mr. Hood’s that Ms. Edmunds intended the document discussed at that meeting to constitute her final will. She might have intended to review and discuss it with Ms. Herrington, but any lawyer who has practiced extensively in this area knows that wills are frequently revised, sometimes dramatically, at the very meeting convened to deal with execution. A discussion prior to execution, in the absence of Mr. Hood, might have led to different dispositive provisions. [ 54 ] Second, even if I were satisfied on clear and convincing evidence that Ms.

Edmunds intended to execute the unsigned will, I would not conclude that her failure to do so arose through pure mistake or inadvertence. The term pure mistake implies that the testator thinks she is doing one thing but in fact does something else. For example, a testator might believe she is signing her will but mistakenly sign a power of attorney. [ 55 ] Inadvertence arises from an accidental oversight. The circumstances surrounding Ms.

Edmunds’ failure to execute the unsigned will bear no resemblance to an accidental oversight. [ 56 ] The common thread running through s. 39 is clear and convincing evidence of intention. Such evidence of Ms. Edmunds’ intention to execute the unsigned will is absent on these facts. Had she attended upon execution and attempted to sign it, I might arrive at a different conclusion. [ 57 ] However, even if the circumstances in this case could be found to provide clear and convincing evidence of Ms.

Edmunds’ intention, that intention would have to have been frustrated by accidental slip, omission or misdescription, or by a misunderstanding of, or failure to give effect to, the testator’s instructions by a person who prepared the will. The facts of this case would not have supported that conclusion. [ 58 ] Although it was not raised before me, I also note that even if I added Ms. Edmunds’ signature, the unsigned will still would not comply with s. 15 of the WSA requiring that a will, other than a holograph will, be witnessed by at least two witnesses.

As stated, s. 37 allows the Court to dispense with this requirement “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.” [ 59 ] I have not found on clear and convincing evidence that the unsigned will reflects Ms. Edmunds’ testamentary intentions. Accordingly, I would also decline to use s. 37 to dispense with the witnessing requirement.

2. Other Issues [ 60 ] The charities also argue that Mr. Hood’s involvement raises concerns. Much of their brief is directed at what might be referred to as suspicious circumstances. Likewise, much of Mr. Hood’s brief is directed at rebutting any assertion that Ms. Edmunds lacked testamentary capacity or was subject to undue influence. [ 61 ] The charities would have me believe that Ms. Edmunds’ apparent lack of insistence that Ms. Herrington attend upon her forthwith so that she could execute the unsigned will reflects equivocation on Ms. Edmunds’ part rather than Mr. Hood’s desire to reduce Ms.

Edmunds’ level of stress arising from her health issues. The charities would have the Court believe that the unsigned will reflects Mr. Hood’s intentions more than Ms. Edmunds’. [ 62 ] I do not believe it necessary or advisable to make a determination of capacity or free will in a chambers application based on Mr. Hood’s and Ms. Herrington’s affidavit evidence and questioning transcripts. Were I to add Ms. Edmunds’ signature so that the parties were dealing notionally with a will signed by the testatrix, I would direct that will be proved in solemn form, with the benefit of viva voce evidence.

Since I decline to do the former it is unnecessary for me to do the latter. V. Conclusion [ 63 ] Mr. Hood’s application for rectification is dismissed. If the parties cannot agree on costs, they are to provide me with written submissions within sixty days of the date of this judgment. Heard on the 8 th day of September, 2017. Dated at the City of Calgary, Alberta this 6 th day of December, 2017. C.M. Jones J.C.Q.B.A. Appearances: Kevin P.

McGuigan and Justin Brunette for the Applicant Farha Salim and Predrag Tomic for the Respondents Mustard Seed and Canadian National Institute for the Blind Gleb Malinovsky for the Respondent South Calgary Community Church a Congregation of the North American Baptist General Conference