2021 NLSC 48, 2021 NLSC 48

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation: Edwards Estate (Re), 2021 NLSC 48 Date: April 08, 2021 Docket: 202106E0968 In The ESTATE of Emily Laura Edwards, late of the Town of Lawn, in the Province of Newfoundland and Labrador, homemaker Before: Justice Garrett A. Handrigan Place of Hearing: Grand Bank, Newfoundland and Labrador Date of Hearing: March 18, 2021

Summary: Emily Laura Edwards died September 26, 2020. She left a last will and testament dated February 4, 2011. Ms. Edwards purported tochange her will by a subsequent writing, dated December 8, 2014. Her executrix applied for instructions as to the effect of the changesMs. Edwards intended to make by the subsequent writing. The Court found that Ms. Edwards executed the changes to her will according to the Wills Act and declared them to be effective. Appearances: Glen W. Picco, Q.C.

Appearing on behalf of the Petitioner Authorities Cited: CASES CONSIDERED: Clarke Estate, Re (1999), (NL SC), 176 Nfld. & P.E.I.R. 84, [1999] N. J. No. 119 (T.D);Wheeler Estate, Re, 2012 NLTD(G) 78; Bank of Nova Scotia Trust Company v. Ait-Said, 2016 ONSC 4051 STATUTES CONSIDERED: Wills Act, R.S.N.L. 1990, c. W-10

REASONS FOR JUDGMENT Handrigan, J.: INTRODUCTION [1] Emily Laura Edwards died September 26, 2020. She lived in Lawn, NL. She left a last will and testament dated February 4,2011, by which she appointed her daughter, Daisy Mary Brockerville, also of Lawn, as her executrix. Ms. Brockerville applied to thisCourt on March 8, 2021 to probate her mother’s will and to be appointed as executrix of her estate. I will appoint Ms. Brockerville asexecutrix of the estate but there is an issue as to how she will distribute it which I must address first. [2] As I noted, Ms.

Edwards made her will on February 4, 2011, but purported to change it by a subsequent writing, datedDecember 8, 2014. I reviewed Ms. Brockerville’s application for letters of probate and the alterations Ms. Edwards made to her will, firstin Chambers and then I invited Ms. Brockerville’s counsel to address me on the record about them. I heard counsel on March 18, 2021and reserved my ruling on the validity of the changes until now. The Issue [3] Are the changes Ms. Edwards purported to make to her will valid? The Law Statute [4] Section 2(1) of the Wills Act, R.S.N.L. 1990, c.

W-10 sets out how a will is to be “made and executed”: A will is invalid unless it is made in writing, and it is either in the handwriting of the testator, and signed by him or her, or, where not sowritten and signed, is signed by the testator in the presence of at least 2 witnesses, who shall, in the presence of the testator, sign the willas witnesses, and where the will is made by a person who cannot write, it must first be read over to or by the testator in the presence ofthe witnesses. [5] Section 12(1) of the Wills Act says that: No obliteration, interlineation or other alteration, made in a will after the execution of it, is valid or has an effect except where the wordsor effect of the will before the alteration is not apparent, unless the alteration is made and executed in the manner required by this Act. [6] Section 12(2) says: A will with an alteration is considered to be executed where the signature of the testator, or the testator’s signature and that of thewitnesses, is made in the margin or on some part of the will opposite or near to the alteration, or at the foot or end or opposite to amemorandum referring to the alteration and written at the end or some other part of the will or attached to it.

Case Law [7] Hickman, C.J. considered the effect of

section 12 of the Wills Act in Clarke Estate, Re (1999), (NL SC),176 Nfld. & P.E.I.R. 84, [1999] N. J. No. 119 (T.D). There, the testator added words after he made a validly executed will that werewitnessed neither by the subscribing witnesses to the will nor by anyone else. Hickman, C.J. admitted the will to probate as originallyexecuted and refused to give effect to the words which the testator added. He summed up the law this way: It is well established law that unexecuted interlineations or interpolations made after the execution of a will are of no effect.

The WillsAct specifically requires that any alteration to a will must be executed in the same manner as the will itself. (Clarke Estate, Re, paragraph 10). [8] Goodridge, J. (as he then was) also considered the effect of

section 12 in Wheeler Estate, Re, 2012 NLTD(G) 78; in which thetestator altered his properly executed will by obliterating part of one clause and adding two new clauses. Goodridge, J. commented onthe propriety of obliterating parts of a properly executed will and adding clauses to it: Where a testator/rix alters his/her will by fully obliterating part of the text, then that can effect a partial revocation.

Where a testator/rixalters his/her will by adding new text, then that alteration is valid only when executed in the manner required by the Wills Act. … (Wheeler Estate, Re, paragraph 6). [9] Ultimately, in Wheeler Estate, Re, Goodridge, J. found that the obliteration effectively revoked the “obscured text” because thewhite-out liquid paper had “[t]he effect…that no part of the previous text is apparent”; so that “[p]ursuant to the exception contemplatedby s. 12 of the Wills Act...the obliteration is effective in revoking the obscured text.” (Wheeler Estate, Re, paragraph 11). [10] As to the two clauses the testator purported to add to his will, Goodridge, J. rejected both; because they were not “…executedin the manner required by the Act” (Wheeler Estate, Re, paragraph 12); referring, of course, to the manner of execution that

section 2 of

the Wills Act directs. [ 11 ] In this case, because Ms. Edwards attempted to obliterate a part of her will and replace it with other words, I must inquire: • if the words she attempted to obliterate are no longer apparent; • if the words are still apparent, was her attempt at obliteration properly executed as required by section 12(2) of the Wills Act ; and • if the words Ms. Edwards purported to add to her will were executed as required by

section 2 of the Wills Act . [ 12 ] This is the law I will apply to the issue I stated earlier. I turn now to analyze that issue, starting with the background to it. Analysis Background [ 13 ] Ms. Edwards died September 4, 2020. Ms. Brockerville’s application for probate does not say how old her mother was then, but from the ages of her children, I expect she was of advanced years. Ms. Edwards made her will on February 4, 2011. She wrote it on a pre- printed will form, with appropriate blank spaces for designating her executrix, listing her assets, and directing to whom they would be distributed after she died.

The “main body” of the will comprises three pages (1-3) but she appended another three pages (4-6) to those in which she listed many of her assets, including savings bonds, GICs, insurance policies, and vehicles. [ 14 ] Ms. Edwards wanted to revise her will in 2014. To that end, she added two more pages (7 & 8) and called them “Revision of Last Will & Testament of Emily Laura Edwards December 8, 2014”. The revision deals with three things: land located at 7B Webbers Road Extn., Lawn; land located at 30 Harbour Drive, Lawn; and a life insurance policy. Ms.

Edwards undertook to attach pages 7 & 8 to her will by two steps: first, by calling what appeared on page 7 as a “revision of the will”; and then by striking through two lines on page 2 of the will and writing next to the stricken words, “See Revision pg. 7”. [ 15 ] As to the words Ms. Edwards struck through, she did not obliterate them completely, they are still legible and they read: “House and land at 30 Harbour Drive, Lawn: Daisy Brockerville (daughter) providing she is still caring for me at my time of death”. Ms.

Edwards left the remaining portions of pages 1-3, what is the main body of the will, otherwise intact. [ 16 ] She also drew lines through portions of pages 4, 5 & 6, which, as I already noted, were part of the original iteration of the will. She added these two paragraphs as page 7 of the will on December 8, 2014, “Re: Page 2”, an obvious allusion to page 2 of the main body of the will: 4(a). House and Land at 7B Webbers Road Extn, Lawn is to be owned Solely by my daughter Daisy and her husband Julian Brockerville.

Should Julian be survived by both Emily and Daisy Julian will be the sole beneficiary of 7B Webbers Road Extn. House and Land at 30 Harbour Drive: - House to be demolished in 2016 - Land to be held by family members or sold and divided among surviving family members. [ 17 ] Ms. Brockerville attached a comprehensive affidavit from Wanda Edwards to her application for probate of her mother’s will. Wanda Edwards and George Edwards witnessed both Ms.

Edwards’ will and her revisions to it and, in her affidavit, Wanda Edwards describes both exercises, including: • She and George Edwards witnessed the original will on February 4, 2011. • She and George Edwards, attended on Ms. Edwards’ again and at her request, on December 8, 2014 to witness the changes she made to the will. • She and George Edwards noted these changes to the will: the original will was 3 pages and the changes that they initialed contained 5 pages for a total of 8. • She and George Edwards initialed page 2 of the original will and then pages 4, 5, 6, 7 and 8 of the revised will.

• Emily Edwards was “of sound and disposing mind, memory and understanding” on both February 4, 2011 and December 8, 2014. [ 18 ] Consistent with Wanda Edwards’ affidavit I note the following: • Her and George Edwards’ full, handwritten names appear after Emily Edwards’ signature on page 3 of 6 of the original will. • Their initials (WE & GE) together with Emily Edwards’ initials (EE), appear next to paragraph 4(

a) of the original will and where lines are drawn through the part of paragraph 4(a), which Emily Edwards purported to strike out. • Their and Emily Edwards’ initials appear on pages 4, 5, 6, 7 and 8, of which pages 4, 5 and 6 are part of the original will and pages 7 & 8 are the revisions to it. [ 19 ] Counsel for Ms. Brockerville explained the rationale for the change that Emily Edwards made to her will: The family home and Emily Edwards’ residence was formerly at 30 Harbour Drive, Lawn, NL. However, the dwelling was irreparably damaged during a natural disaster and rendered uninhabitable. Eventually, Ms.

Edwards’ insurance company agreed to pay for an alternative house for the family so Ms. Edwards and her family relocated to the property at 7B Webbers Road Extn, Lawn where she was living at the time of her death. [ 20 ] Emily Edwards intended to leave the family home to Ms. Brockerville when she made her will on February 4, 2011. The family home was still on Harbour Drive then. However, by December 8, 2014 it had been replaced by the newly acquired property on Webbers Road Extn; so, Ms. Edwards wanted to change her will to ensure that Ms.

Brockerville and her husband, Julian Brockerville, received the home when she died. Thus, the revision was born. [ 21 ] This is the background to the issue I stated earlier. I turn now to discuss that issue, by looking at the three aspects of it that I also stated earlier. Discussion Words Not Fully Obliterated [ 22 ] Earlier I set out the words from paragraph 4(

a) of Emily Edwards’ will that she purported to strike from page 2, so I will not repeat them. It is sufficient to note that the words are plainly legible despite the line that she drew through them. Section 12(1) of the Wills Act says that “[n]o obliteration, interlineation or other alteration, made in a will after the execution of it, is valid or has an effect except where the words or effect of the will before the alteration is not apparent…”. In the first instance then, it appears that Ms. Edwards’ attempt to change her will was ineffective because the words she sought to expunge from it are still “apparent”.

Words Apparent, Manner of Effective Execution [ 23 ] However, the Wills Act offers an exception for a failed effort at obliterating the words completely when “…the alteration is made and executed in the manner required by this Act ”.

In Clarke Estate , Re , Hickman, C.J. refused to give effect to words the testator tried to add to his will because they were not made and executed as required by the Wills Act . [ 24 ] In Wheeler Estate , Re , Goodridge, J. found that some words were completely obliterated by the white-out fluid the testator applied to them so that the obliteration was effective; but like Hickman, C.J. in Clarke Estate , Re , he refused to give effect to the two clauses the testator added because he and the two witnesses did not sign the change to the will to confirm that it was added after the fact. [ 25 ] In this case, Emily Edwards and her witnesses, Wanda Edwards and George Edwards, each placed their initials in the right margin of page 2 of her will and the note that reads “See Revision Pg. 7”.

On page 7, which was added to accept the revision, Emily Edwards and her witnesses, again Wanda Edwards and George Edwards, also placed their initials at the bottom of the page, immediately underneath the text of the “Revision”. Compliance with

Section 2 of Wills Act [ 26 ]

Section 2 sets out the manner of execution. It bears repeating, as is relevant here: A will is invalid unless it is made in writing, and it is either in the handwriting of the testator, and signed by him or her, or, where not so written and signed, is signed by the testator in the presence of at least 2 witnesses, who shall, in the presence of the testator, sign the will as witnesses…. [ 27 ] Now, neither Emily Edwards nor her witnesses signed their names in each of the instances where Ms. Edwards purported to revise her will, either on page 2 or on the added page 7.

Instead, they affixed their initials in both places. [ 28 ] Trousdale, J. of the Ontario Superior Court of Justice dealt with the effectiveness of initialing changes, not signing them, in Bank of Nova Scotia Trust Company v. Ait-Said , 2016 ONSC 4051 . Franklin Walter Briggs’ trustee applied for directions on how to distribute his estate because of certain documents he found among the testator’s effects, besides his will.

Of interest in this matter is a paper writing which Trousdale, J. referred to in her decision, as the “August 8, 2014 Document”. [ 29 ] In fact, the “2014 Document” consisted of a photocopy of another document which the learned justice referred to as the “July 29, 2013 Document”. Of interest about the 2014 Document was the handwriting that appeared on the bottom of the photocopy of the

2013 document, which itself was only a photocopy. By the handwriting, which Trousdale, J. accepted Mr. Briggs made on both documents, but the 2014 Document especially, Trousdale, J. concluded that Mr. Briggs purported to add a paragraph to the 2013 Document. [ 30 ] This is how Trousdale, J. described the changes that Mr. Briggs intended to make to the 2013 Document: … Mr. Briggs put his initials beside the new paragraph which he inserted on the July 29, 2013 Document as “NOTE Further to the above”. I find that the initials of Mr. Briggs are in the same handwriting as his signature on the July 29, 2013 Document.

These initials were placed to the left and beside the new paragraph added onto the photocopy of the July 29, 2013 Document. I find that the placing by Mr. Briggs of his initials beside the new paragraph was placed by him there to represent his name and that those initials constituted his signature. ( Bank of Nova Scotia , paragraph 37) [ 31 ] She went on then to find that “…the placement of Mr. Briggs of his initials beside the new bequests on August 8, 2014 complied with

section 7 of the [ Succession Law Reform ] Act ” ( Bank of Nova Scotia , paragraph 39). [ 32 ] In this case, Emily Edwards and her witnesses, Wanda Edwards and George Edwards, also placed their initials and not their signatures on both pages 2 and 7 when she purported to change her will on December 8, 2014. I am satisfied, as Trousdale, J. was in Bank of Nova Scotia, that Emily Edwards’ initials and those of her witnesses, to paraphrase what Trousdale found in Bank of Nova Scotia , represent their names and those initials constitute their signatures. [ 33 ] In the result, I find that the additions Ms.

Edwards made to her will by adding page 7 and the words that are written on it are validly executed and effectively revise her will, so that full effect can be given to them. For greater certainty, I find that Ms. Edwards’ devise and bequest of her house and land at 7B Webbers Road Extn., Lawn is valid and effective as it directs; and further that her devise and bequest of the house and land at 30 Harbour Drive, Lawn is valid and effective as it directs. [ 34 ] Counsel for Ms. Edwards’ estate advised me that other purported changes to Ms. Edwards’ will, which appear on pages 4, 5 & 6 are of no concern to Ms.

Edwards’ executrix as they refer to assets that were not a part of Ms. Edwards’ estate when she died. Accordingly, I make no comment about them.

Summary and Disposition [ 35 ] Emily Laura Edwards died September 26, 2020. She left a last will and testament dated February 4, 2011. Ms. Edwards purported to change her will by a subsequent writing, dated December 8, 2014. Her executrix applied for instructions as to the effect of the changes Ms. Edwards intended to make by the subsequent writing. [ 36 ] The Court found that Ms. Edwards executed the changes to her will according to the Wills Act and declared them to be effective.

Order [ 37 ] In the result, I find that Emily Edwards effectively revised her will dated February 4, 2011 by the changes she made to it on December 8, 2014. _____________________________ Garrett A. Handrigan Justice