Estate of RM, 2022 NUCJ 2

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: Estate of RM , 2022 NUCJ 2 Date: 20220121 Docket: 10-18-044 Registry: Iqaluit Applicant: Public Trustee for Nunavut -and- Respondent: Estate of RM, deceased __________________________________________________________________ Before: The Honourable Mr. Justice Paul Bychok Counsel (Public Trustee): M. Rasmussen Counsel (Estate): Unrepresented Counsel (DFCS): S. MacPherson Location Heard: Iqaluit, Nunavut Date Heard: January 21, 2022 Matters: Application for Advice and Direction under the Trustee Act and Probate Rules REASONS FOR DECISION (NOTE: This document may have been edited for publication)

DISCLAIMER PAGE Anonymized Judgment Disclaimer : This judgment has been anonymized to comply with legislative requirements or at the discretion of the authoring Justice to protect vulnerable parties. Letters have been assigned at random. I.

INTRODUCTION [ 1 ] This is the application of Nunavut’s Public Trustee (Public Trustee) for advice and direction respecting their administration of an estate. [1] Specifically, the Public Trustee asks this Court whether a handwritten and unsigned document purported to have been made by the deceased is her valid will and if it is, how it is to be interpreted. [2] As this matter had been before this Court for some time, I gave an oral decision on January 21, 2022. These are the more complete written reasons which I promised counsel I would provide.

As my reasons for decision may cause some distress to RM’s surviving family members, I have anonymized this written decision. II. BACKGROUND [ 2 ] RM died on September 9, 2016. She had been a schoolteacher for over 30 years. RM had five children, all daughters, who survived her. One of her daughters is a minor. One of her adult daughters, who I shall call X, says she was in the hospital room with her mother when her mother wrote the document in question. X says she did not see her mother write the document. X says RM gave her the document to keep safe. [3] The handwritten document is not signed nor is it dated.

It is written in Inuktitut. [ 3 ] With the exception of the deceased’s house, all her personal property has been distributed to her heirs. X has lived in the house since her mother died. [ 4 ] Another daughter, who I shall call Y, asked the Public Trustee to administer the deceased’s estate assuming that her mother had died without leaving a will. Y has since died. [ 5 ] X agreed to this request, and X filed a written renunciation of her right to administer the intestate [4] estate on March 6, 2017.

Letters of Administration were granted to the Public Trustee on January 24, 2018, on the basis of an intestacy. [ 6 ] The material filed by the Public Trustee is unclear but sometime in or around September, 2017 the Public Trustee received, by facsimile, a copy of the document in question as well as what appeared to be a handwritten translation of the document into English. No cover sheet is attached to the document and the translation is not signed. On the basis of statements made in her affidavit noted above, [5] I find that X sent the document to the Public Trustee and I infer that X prepared the translation.

I note in passing that X’s translation differs to a degree from the independent translation of the document obtained by the Public Trustee. [6] [ 7 ] On November 7 and 8, 2018, Y and another adult sister each notified the Public Trustee of their wish that their mother’s house be sold with the proceeds distributed to her heirs. Another adult sister requested the same disposition of the house and distribution to the

heirs on June 11, 2019. On June 26, 2019, X advised the Public Trustee that she wanted the house to be vested in her and her minor sister stating that this would honour their mother’s wishes as expressed in the document. [ 8 ] The minor sister was apprehended from X by the Director of Child and Family Services on July 10, 2020. A Permanent Custody Order was subsequently issued. [ 9 ] I am satisfied on the evidence that RM had decision-making capacity at all material times. III. THE APPLICABLE LAW [ 10 ] Nunavut’s laws respecting wills and estates are based on centuries of common law jurisprudence.

These laws provide an extensive framework which have been designed to respect fairly and justly the right of a competent adult to dispose as they see fit of their property after death. In my analysis, I shall only refer to those aspects of that extensive set of laws which assisted me to resolve the issues in this case. [ 11 ]

Section 5.1 of Nunavut’s Wills Act [7] ( Act ) states that a document handwritten and signed by a person who we call either the testator (male) or testatrix (female) constitutes a valid will despite it not having been witnessed. I have already noted that the document in question is not signed. At first blush,

section 5 would appear to settle the matter. [ 12 ] However, the Act goes on to state that in certain circumstances the failure by a testatrix to sign a handwritten will may not necessarily be fatal to its validity. To find that the document is a valid will, I must be satisfied on a balance of probabilities that there is “clear and convincing evidence that the deceased … intended the document or writing to constitute a will.” [8] It follows that this is an intensely case-specific fact-driven process. [9] [ 13 ] These sections do not appear to have been considered by this Court in any reported cases. IV.

ISSUES [ 14 ] There are two issues, then, before the Court which may be phrased as two discrete questions: 1. Is the unsigned document a valid will? And 2. If the answer to question one is yes, how is the will to be interpreted? V.

ANALYSIS [ 15 ] I will not address all the evidence before the Court, but only those key pieces of evidence and factors which have guided my analysis. [ 16 ] I start my analysis noting that X provided the document to the Public Trustee claiming that it was her mother’s intention that she, X, inherit the house and that her minor sister should live with her. [10] The house was assessed in 2017 to be worth $102,100.00.

[ 17 ] X filed two affidavits in this application. In the first, dated February 28, 2020, X said: One of her doctors suggested that she write her necessary papers (will) because her condition wasn’t well. She made me promise that I would not show the letter until after her death … I was not present when she wrote the letter. [ 18 ] At an earlier hearing, I suggested to counsel for the Public Trustee that this affidavit did not provide evidence that RM had written the document.

The Public Trustee then obtained from X the October 25, 2021 affidavit in which the latter stated: I was in my mother’s hospital room when she wrote the document that is being called into question. In my Affidavit sworn February 28, 2020 I stated that I was not “present”. I meant that I was not sitting beside her, but I was in the room.

I didn’t watch her actually writing the document … I don’t believe there was anyone else in the room at that time. [ 19 ] I find it hard to credit X’s assertion that she did not see her mother write the supposed will while she, X, was in the room at the time the will was written – a document which she claims was written in her favour. [ 20 ] Before she died, Y expressed doubt concerning the document’s authenticity saying the document was "badly written" and that her mother "wrote very neatly and clearly". [11] Another adult sister, Z, filed an affidavit saying that "I don't believe that it is in my mother's handwriting, it is messy and my mother wrote very neatly and used the little syllabics". [12] I note the deceased had spent her adult life as a schoolteacher, so these two observations ring true and caused me concern.

That said, RM had been recently medevac’d to Ottawa with a collapsed lung and she was suffering from advanced cancer. I infer that she was suffering from some considerable physical distress which would have had some impact on her ability to write clearly. However, that distress would not account for RM changing her lifelong use of little syllabics to large ones. [ 21 ] The evidence reveals that there are longstanding differences between the adult sisters. The evidence includes a letter written by Y which outlines some of these tensions.

The unattributed September 2017 translation of the document - which I have inferred was prepared by X - criticizes Y; but that criticism is absent in the independent translation. I have considered these dynamics, and I am satisfied that the observations of both Y and Z are credible and reliable. [ 22 ] I have asked myself why X would agree in writing to renounce her right to administer RM’s intestate estate all the while possessing a document which she says is her mother’s will - one which X claims gives her title to the house.

I am also troubled that X did nothing to bring the supposed will to light until an entire year after her mother's death had gone by. There is no evidence which addresses why X did not disclose the supposed will for one year before sending a copy to the Public Trustee, or why she waited until October 24, 2018, to send the original document to the Public Trustee. This undermines my confidence that RM wrote the document. VI. DECISION A.

Issue 1 [ 23 ] While there is no evidence that X put any undue pressure on her mother to write the document in her favour, the alleged circumstances surrounding the preparation of the document are problematic. I cannot say in these circumstances - including having given due weight to the evidence from the other adult sisters - that I am satisfied on a balance of probabilities that there is clear and convincing evidence that the deceased intended the document to constitute her will. [ 24 ] I rule that the supposed will is invalid and inoperative.

I direct the Public Trustee to distribute the remainder of RM’s estate among her four surviving children pursuant to the provisions of the Intestate Succession Act . [13]

B. Issue 2 [ 25 ] As I have ruled the document does not constitute a valid will, question two is moot. Dated at the City of Iqaluit this 31st day of January 2022 ___________________ Justice P. Bychok Nunavut Court of Justice